[Asrg] Round 2 of the DNSBL BCP - "collateral damage"

[Rich Kulawiec]

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