On Tue, Apr 01, 2008 at 10:53:02PM -0400, der Mouse wrote:
I'm not so sure. In common-law jurisdictions, there is a rule which
I've seen summarized as "ancient custom has the force of law", which
has been used to do things like establish public right-of-way across
private land where an effectively-public path has existed for long
enough. It's not clear to me this would wash as a legal argument in
this context, but it's certainly not clear it wouldn't, either.
Does anyone know of any law, either way, in any jurisdiction, bearing
on that theory? (I'd hope it would be shot down, but would much prefer
to know, either way.)
I recognize this concept - it's been used, for example, to defend public
right of access to trails that cross what's now farmland.
But (a) I don't think any Internet services qualify as "ancient",
even if we stipulate "Internet time". ;-)
And (b) a law or judicial ruling applying this to Internet services --
that is, stating that service providers MUST provide certain HTTP or
SMTP or FTP or other services to anyone/someone who doesn't have a valid
contract -- would be disastrous for the Internet. I'm not aware of any
such law or ruling, but I have a vague recollection that this came up
in one of the spammer legal actions against AOL. I'll try to find it
and see if my memories on this point are accurate.
---Rsk
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