Thank you, Laura, Ulrike and Jackson.

I wonder whether anyone has complied a collection of the numerous dissents of US Supreme Court Justices Douglas and Black on this issue.

It would make for interesting reading ...

Both Douglas and Black were First Amendment absolutists. If I taught a course on the Bill of Rights, though, I think I'd start with the concurring opinion of Justice Douglas in the case of Lehman vs. Shaker Heights. Here's a link if you're interested: http://www.law.cornell.edu/supct/html...

So is a book discussion forum with voluntary membership but without entrance fee and virtually no other bars to membership, either, more akin to a public park or a public bus? :)

(Re: the end of the opinion: Speaking personally, I find it a great pity that the issue whether commercial advertising can be forced onto the unwilling commuter was not simultaneously before the court ...)

There are a number of quotes by Justice Douglas in the GR database -- knowing me, you probably won't be surprised that I've added virtually all of them to my personal collection!

The majority decision held the city could limit political advertising on the bus, but for a different reason. If I remember the controlling opinion, the court found the city had a compelling reason by its need to prevent corruption by the transit authority. The position of Justice Douglas was never adopted by the full court, although he asserted it several times.

I'm afraid the book discussion forum more akin to a shopping center which is a de facto public place but which the courts have held is private, allowing the owners to do whatever they want to stifle speech. See Pruneyard vs. Robins: http://www.law.cornell.edu/supct/html...

Well, with Amazon now owning GR, a shopping center probably really is the appropriate image (or comparison).

You really should read the third last piece in "Off Topic" ... ;) (In essence, it can also be found here and here.)

That's interesting case reading. (Well, more interesting than the others I had to slug through today anyway...)

I suppose though, GR could not be seen as a shopping centre in the sense of Pruneyard as GR is solely owned by Ammy, rather than multiple retailers?

Don't tell me the occupational hazard of having to read case law every so often is yet another thing we have in common, Ulrike?

Wasn't the Pruneyard shopping center/shopping mall owned by a single company, though, which then leased space to the individual store owners doing business on the mall's premises? That's the mental image I had, anyway. (So then the regulations prohibiting appellees' activities would presumably have been regulations established by that "overall" owner of the premises.)

More generally, in terms of comparison with Ammy, my reference was to the fact that Ammy now owns about as many different divisions as you tend to find stores in a mall -- even if in a mall, it's stores owned by different retailers, whereas Amazon's gazillion different divisions are 100% its own.

Themis-Athena (Does not and never will own a Kindle) wrote: "Don't tell me the occupational hazard of having to read case law every so often is yet another thing we have in common, Ulrike?

Wasn't the Pruneyard shopping center/shopping mall owned by a single..."

Well, it certainly looks like there's more to your doppelgaenger-theory than first meets the eye. ;-) Just kidding, I'm sure one of these days we'll find something to cause us to celebrate our differences.

You're right the shopping centre only had one owner and several occupiers. But I'm sure the Pruneyard decision was, not overturned, but restricted in its application later on. One of the restrictions was in Costco Companies Inc. v. Gallant
where the courts differentiated between owners who are the sole users and owners who shared the use of the "public space" with others (for instance other retailers leasing part of the property).

Though, thinking about it, as long as GR still makes books available / operates links to other book retailers, I suppose Pruneyard could still apply? It does make for an interesting question on whether the public space on which Pruneyard relied is limited to a physical presence rather than a virtual one.

Ulrike [Disclaimer: My opinion is not paid for by Amazon.] wrote: "It does make for an interesting question on whether the public space on which Pruneyard relied is limited to a physical presence rather than a virtual one."

Yes -- and another distinguishing point just might be the fact that (:: commonplace statement alert ::) a mall is a mall is a mall, i.e., people seek it out, first and foremost, not as a "marketplace of opinions" (since we're into quoting the Supreme Court here anyway), but as a marketplace of commercial goods and services ... whereas Goodreads for the longest time presented itself -- to its reader-users, at least -- as a marketplace of opinions, pure and simple.

And then, to me there is also the issue of whether terms such as these stand up to scrutiny on the much more basic level of contract law. My perception is probably heavily skewed by my own country's legal system here -- I am virtually certain that GR's terms would not stand a chance of survival in many, many different respects hereabouts, though I do realize German law is much stricter than California contract law as far as contracts of adhesion and "general terms of service" are concerned. But still, even California law does impose both a "procedural unconscionability" test -- in the context of which, for example, something like 'well, plaintiff could just have gone and used somebody else's services instead if he didn't like my terms' is not a valid defense at all -- and a "substantive unconscionabilty" test, which basically comes down to notions of equity and fairness and attaches to the language of a contract. I'm pretty sure GR's terms would fail the procedural unconscionability test -- the big question is whether they would also fail to stand up to scrutiny on substantive unconscionability grounds (and only if/to the extent that both tests are failed will a California court find general contract terms void). I'm afraid GR's terms might just be able to take the substantive hurdle, though I think trying to get a court to see things differently is a battle I'd very much enjoy being in on!

Themis-Athena (Does not and never will own a Kindle) wrote: "Ulrike [Disclaimer: My opinion is not paid for by Amazon.] wrote: "It does make for an interesting question on whether the public space on which Pruneyard relied is limited to a physical presence r..."

LOL! This is probably the most fun consideration of ToS I've been wondering about lately.

But to come back to the Pruneyard and freedom of speech aspect, is a mall a mall a mall? I understood the Pruneyard judgement to be based on the mall being a piazza type place to socialise and for the public to , well, be in public, rather than just being there for the purpose of shopping.

Ulrike [Disclaimer: My opinion is not paid for by Amazon.] wrote: "But to come back to the Pruneyard and freedom of speech aspect, is a mall a mall a mall? I understood the Pruneyard judgement to be based on the mall being a piazza type place to socialise and for the public to , well, be in public, rather than just being there for the purpose of shopping."

Alright, make it "all purpose" socializing then -- talking, shopping, going to the movies, stopping by the food parlor, the whole kit'n kaboodle. Isn't that still different from socializing in a forum that is necessarily much narrower in focus, in that it is built, at its core, on a form of socializing that specifically involves the treasured marketplace of opinions? (Or in Otis Chandler's frequently-quoted words of yore, even if I'm paraphrasing: "We wanted to give people a place where they could talk about books, because whose opinions about books are you going to trust more than those of other people you trust?") You can't -- well, at this point you cannot yet, anyway -- buy any books on Goodreads. You can't in fact buy anything other than books, either. You can't watch any movies. There is no food parlor. All you can really do on Goodreads, even though you can do that in a variety of different ways, is talk. And though people do come here to talk about other things as well (and it is the community as such that we've all come to value, and that we mourn as a consequence of recent events), hardly any of us would be here at all if we weren't interested in books -- and talking about books -- first and foremost ...

ETA: I suppose it was bound to happen that some of the lawyers on this site would get down to brass tacks over the ToU eventually! :)

I only wish we'd had this exchange before I wrote my piece for "Off Topic" ... I could well have used Pruneyard there as well! ;) Ah, tant pis.

Themis-Athena (Does not and never will own a Kindle) wrote: "Ulrike [Disclaimer: My opinion is not paid for by Amazon.] wrote: "But to come back to the Pruneyard and freedom of speech aspect, is a mall a mall a mall? I understood the Pruneyard judgement to b..."

Yes, I see what you mean. The sole purpose of GR still at this point is quite different from the mall analogy.

It's been a long time since I've read the Pruneyard case in full. As I remember it, the decision turned on principles of property law and the dissent objected to that analysis. I haven't read the Costco case, but it appears to be a California appellate decision which means it has limited applicability. As you analyze it Ulrike, Costco sounds like something the dissenters in Pruneyard would have come up with if they had gained the majority on the US Supreme Court and would have had to deal with the Pruneyard precedent.

I tend to look at cases as a deconstructionist. Pruneyard was really decided on the John Wayne "This is my ranch and I get to say what goes on here" principle.

With that said, I think Jeff Bezos could wake up one morning and say "I'm turning the switch off on Goodreads today" and do it without significant problem. Amazon would have some liability to advertisers and some litigation claims by users. When the dust settled, though, the courts would find that contributors here granted Goodreads a voluntary mutually terminable at will license to use the contributors' postings.

That's my take on it, for whatever it's worth. And, it's not to say I agree with new GR policies. To play devil's advocate, though, the policies may have been inspired by liability concerns.

If a defamed author or reader shows up at my law office aggrieved by a posting by someone on Goodreads, I'm much more interested in helping that client seek damages from Goodreads than from some one relatively anonymous human being somewhere out in cyberspace. If you have a good defamation case, you're certainly more interested in recovering from the newspaper or the television station than the individual reporter.

Themis-Athena (Does not and never will own a Kindle) wrote: "Well, with Amazon now owning GR, a shopping center probably really is the appropriate image (or comparison).

You really should read the third last piece in "Off Topic" ... ;) (In essence, it can ..."

These postings are really interesting and imaginative. Nice job and good analysis, I must say.