Can we (as a group - I don't intend to single Phillip out) stop with
the bad analogies? We seem to keep filling this list with awful
analogies to the real world that make no sense whatsoever.
The internet email system is different.
The human mind works by analogy. If you believe Lakoff every argument
including mathematics is by analogy. so it is not a very useful request.
Examples of bad analogies seen here:
- SMTP compared to the postal system
- The internet email system compared to the telephone network
- Sender-pays compared to cars that run on water
- Blacklists compared to credit agencies
- Blacklists compared to restaurant critics
All analogies are bad. The question is whether the applicability
of the analogy is understood or not.
The comparison of blacklists and credit agencies is being raised
by the blacklist side. I was pointing out that it is a falacious
argument because the analogy does not hold.
In fact if you look at the credit agency analogy you can see the
reason that a blacklist has a problem re tortious interference.
Credit agencies do not release information about a consumer without
the express consent of the consumer given in advance. That consent
is set out in the form of a contract.
Sure you can do some Napster style lawyering and argue that these
differences are immaterial, that the fact credit agencies exist and
operate in a highly restrictive manner under regulations that grant
safe harbor means that blacklists have carte-blanche. But in the real
world those arguments do not hold water [and if they did you still
could not run your car on it].
The best analogy for blacklists is probably restaurant critics. And
in that world there is definitely serious liability. A critic is
unlikely to be sued over anything as subjective as awarding three
or five stars. But a critic who posted 'food was inedible, sanitary
conditions dangerous' could be sued in a heartbeat.
Blanket analogies such as those made by blacklist proponents fail
because they are of the form 'X is legal, blacklists are like an X,
therefore blacklists are legal'. I am pointing out that to operate
within the law X has to observe some very basic legal principals that
the blaclists appear intent on ignoring.
One of the most basic principles is providing a registered business
address. If blacklists want to take advantage of any form of limited
liability this requirement applies to them.
I could probably go on...
Analogies have ceased to be a useful tool, especially on this
list. Can we stick to reality?
There is very little case law that relates to blacklists, and that which
does exist is constructed on the basis of analogy. If you follow the
early cases in almost any Internet related field you will see
arguments over what the correct analogy should be.
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