Google Groups removal procedures [Re: SCO's evidence in support of its claim that IBM spoliated evidence]

Altoid Petrofsky

For anyone interested in Google Groups's procedures: below is some
correspondence about the parent of this message, which Google said
last week it intended to remove from the Google Groups usenet archive,
but which Google now says it does not have any imminent plans to
remove.

If you're reading this at some point in the future, and Google has
gone on to remove the message in question, then you can probably still
find it at any of the several other websites that archive this
particular newsgroup, and of course it's likely also still available
from some of the thousands of usenet servers that carry this group.
Just in case, though, I've put a copy of it at the following URL:



If you are the "Third-Party Notifier" (who is apparently not yet a
"Formal Requestor"), then please see my arguments in my first email
below. Also, please send me a copy of whatever court order you are
talking about, if it turns out that I did not guess correctly.
Thanks.

-al

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Date: Thu, 29 Mar 2007 16:14:24 -0700
From:
To:
Subject: [#130236897] Google Groups Post

Hi Al,

Google has been notified, that content posted by you on Google Groups,
violates an order by the court not to publish sealed documents. The
content in question is located in the following post:



We are asking that you please remove the allegedly infringing post. If you
do not do this within the next day (by March 30, 2007), we will remove the
post in question.

If you have legal questions about this notification, you should retain
your own legal counsel. If you have any other questions about this
notification, please let us know.

Thank you for your understanding.

Regards,
The Google Team

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Date: Thu, 29 Mar 2007 22:08:45 -0700
From: Al Petrofsky <>
To: "The Google Team" <>
Subject: Re: [#130236897] Google Groups Post

Hi Team,

Thank you for your email. For the reasons below, I encourage you not
to remove the post from Google.

If you have legal questions about this response, please have your
legal counsel contact me using the contact information at the end of
this email.

If the party that notified you of this alleged problem is threatening
legal action against you unless you remove the post, then please
forward to me the communication that you received, and/or put me in
contact with this party in order that we may all attempt to come to a
common understanding. To date, I have not received notice from any
person alleging that there is anything unlawful about my having posted
the message in question.


I. The Order is Not Directed at Google Nor at Al Petrofsky

I am guessing that by the words "an order by the court" you mean the
September 16, 2003 Stipulated Protective Order by the United States
District Court, District of Utah, entered as document #38 in Case
No. 2:03cv294, SCO Group v. International Business Machines (IBM). A
complete copy of that order and its exhibit can be found at the
following URLs:




If you mean some other court order, please send me a copy of it.

If by the words "content ... violates" the order, you mean that I have
violated the order, or that Google would violate the order by
continuing to make the content available, then I believe you are
mistaken. The order is directed at the Plaintiff and Defendant, and
at some miscellaneous persons related to the litigation. It is not
directed at Al Petrofsky, nor Google, Inc., nor the world at large.
Per sections 1(F), 4(F), and 13 of the order, it is also binding on
various witnesses and other third-parties who have signed a
Declaration and Acknowledgment form (Exhibit A to the order) and
thereby agreed to comply with the order (per paragraphs 5 and 9 of the
Declaration), but I do not believe that Google is among the
third-parties that have done so.


II. An Order Directed at Google or Al Petrofsky
Would Be Unconstitutional

The allegedly confidential information in the message was provided to
me by the District Court. I would like to draw your attention to the
holdings of the United States Supreme Court regarding information that
has been lawfully obtained:

[i]f a newspaper lawfully obtains truthful information about a
matter of public significance then state officials may not
constitutionally punish publication of the information, absent a
need to further a state interest of the highest order.

(Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979))

This applies even when the public officials that made the information
available did so mistakenly:

[T]he newspaper "lawfully obtain[ed] truthful information ..." ...
[T]he fact that state officials are not required to disclose such
reports does not make it unlawful for a newspaper to receive them
when furnished by the government. Nor does the fact that the
Department apparently failed to fulfill its obligation under 794.03
not to "cause or allow to be ... published" the name of a ***ual
offense victim make the newspaper's ensuing receipt of this
information unlawful.

(The Florida Star v. B. J. F., 491 U.S. 524, 536 (1989))

For a recent holding that individuals publishing news on the internet
are entitled to the same protections as a traditional "newspaper", see
O'Grady v. Superior Court (Apple Computer, Inc.), 139 Cal.App.4th 1423
(2006).


III. I Did Not Post To Google,
And I Have No Power To Comply With Your Removal Request

Even if I did see good reason to cease disseminating the information,
I do not understand how you think I would go about complying with your
request that I remove something from Google.

I should point out that I have never posted anything directly to
Google Groups. What I did on Tuesday was post a Usenet message, with
Message-Id <>, to Usenet newsgroup
alt.os.linux.caldera, through my local Usenet server. The message has
since propagated to thousands of other Usenet servers throughout the
world.

There are several websites that retrieve all postings that are
available on the Usenet newsgroup and make copies of them available on
the World-Wide Web. Google Groups is one such site. That is why a
copy of Usenet message <> has come to be
available at the URL you mentioned in your email. Here is some
helpful information about Usenet and the relationship between Google
Groups and Usenet:



2. What is a Usenet Newsgroup?

Usenet refers to the distributed online bulletin board system begun
in 1979 at Duke University. Usenet users can post messages in
newsgroups that can be read or contributed to by anyone with access
to the Internet and special newsreader software. Over the years,
the number of newsgroups has grown to the thousands, hosted all
over the world and covering every conceivable topic.

Google Groups contains the world's most comprehensive archive of
postings to Usenet, dating back to 1981. Google Groups eliminates
the need for newsreading software and lets you search this archive
in the same way you would search HTML pages on the Internet. You
can also use Google Groups to post your own comments to an existing
Usenet newsgroup.

For more technical information about Usenet, see Internet Requests For
Comments (RFCs) Nos. 977, 1036, and 2980 (available from ietf.org).

If Google wishes to remove the message in question from Google's
archive of Usenet, then that is obviously within Google's power to do,
but I do not see how I would perform that action myself.


IV. Conclusion

Google Groups strives to "eliminate[] the need for newsreading
software" (see "What is a Usenet Newsgroup?", above), but it clearly
fails to do so in those situations in which Google chooses not to
archive one of the messages that is available on Usenet. The value of
Google Groups to your customers depends on you not omitting messages
from your archive when there is no good reason to do so.

I have long been a user of Google Groups and its predecessor,
DejaNews. They have been of great value to me and to much of the
computer science community. I hope you will not diminish the value of
the archive by eliminating an informative post about a high-profile
legal case that is of significant interest to that community and to
the wider internet community.


Thank you for your understanding.


Yours truly,

Al Petrofsky
Email:
Voice: 650-520-0626
3618 Alameda Apt 5
Menlo Park CA 94025

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From: Al Petrofsky <>
Subject: Re: [#130236897] Google Groups Post
Date: Tue, 3 Apr 2007 10:05:57 -0700

Google Team,

In your email last week, you stated that if I took no action by
March 30, you would remove from your servers a copy of a message I
posted to Usenet.

I am pleased to see that you appear not to have done so. Is this
because you have concluded that there is no reason to remove the
content, or are you just running behind?

In any event, I would appreciate it if you would forward to me a
copy of the notification you received, because it appears that
whoever sent it to you does not know how to reach me directly. I
have not received any notice from anyone (other than your
second-hand notice) claiming that I violated any court order by
publishing the information in question on Usenet and on my website.

Thank you for your cooperation.

Yours truly,

Al Petrofsky

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Date: Tue, 03 Apr 2007 16:53:03 -0700
From:
To: "Al Petrofsky" <>
Subject: Re: [#130236897] Google Groups Post

Hi Al,

Thank you for your reply. We have not received a formal request for
removal of the posting, only a notice from a third party. Until we
receive such a formal request, we will not remove the post. Thanks for
your understanding.

Regards,
The Google Team

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