From: consensus@netcom.com (Christopher Allen)
Date: Sun, 23 Jan 94 14:06:34 PST
To: cypherpunks@toad.com
Subject: Re: Archiving mail-lists... (Copyright Issues)
Message-ID: <199401232206.OAA24787@mail.netcom.com>
MIME-Version: 1.0
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At 12:24 PM 1/23/94 -0600, Jim choate wrote:
>Seems to me that if a person places a post on a public access newsgroup
>withoug a copyright it automaticaly becomes public domain and they loose all
>commercial rights to it. I would be interested in a public discussion of thsi
>point and will move over to the newsgroup you mentioned.

Actually, that statement is quite false. I highly recommend that everyone
interested in this topic read Terry Carroll's excellent Copyright FAQ,
available for anonymous FTP from rtfm.mit.edu [18.70.0.209],
in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 -
part6.

To quote from Copyright-FAQ part2:
>2.3) I just wrote a great program/novel/song/whatever.  How can I get a
>copyright on it?
>
>Good news.  You already have.  In the United States, as in most nations,
>a work is copyrighted as soon as it is created:
>
>   Copyright protection subsists . . . in original works of
>   authorship fixed in any tangible medium of expression, now
>   known or later developed, from which they can be perceived,
>   reproduced, or otherwise communicated, either directly or with
>   the aid of a machine or device.  17 U.S.C. 102(a).
>
>and,
>
>   A work is "fixed" in a tangible medium of expression when its
>   embodiment in a copy or phonorecord, by or under the authority
>   of the author, is sufficiently permanent or stable to permit it
>   to be perceived, reproduced, or otherwise communicated for a
>   period of more than transitory duration.  17 U.S.C. 101.
>
>What this means in simple terms is that as soon as you've created your
>original work, it's copyrighted.  Because of the "either directly or with
>the aid of a machine or device" provision, it doesn't matter whether
>you've printed it out, or if it's only on your hard drive or floppy disk.
>
>You don't need any special formalities, such as registering the work with
>the Copyright Office, or providing a copyright notice (notice stopped
>being a requirement when the U.S. signed the Berne Convention and enacted
>Berne Convention Implementation Act in 1988; see section 4.1 for more
>information).

Howevever, just because any posting you made after 1988 is automatically
copyrighted by you does not mean that you still can't put it on your CD:

To quote from Copyright-FAQ part3:
>3.8) Are Usenet postings and email messages copyrighted?
>
>Almost certainly.  They meet the requirement of being original works of
>authorship fixed in a tangible medium of expression (see section 2.3).
>They haven't been put in the public domain; generally, only an expiration
>of copyright or an unambiguous declaration by an author is sufficient to
>place a work into public domain.
>
>However, at least with Usenet postings, there are two doctrines which
>probably allow at least some copying: fair use (see sections 2.8 and 2.9)
>and implied license.
>
>Whether a particular use of a Usenet posting is a fair use is, as always,
>a very fact-specific determination.  However, it's probably safe to say
>that it's a fair use if the use was not commercial in nature, the posting
>was not an artistic or dramatic work (e.g.,, it was the writer's opinion,
>or a declaration of facts, and not something like a poem or short story),
>only as much of the posting was copied as was necessary (e.g., a short
>quotation for purposes of criticism and comment), and there was little or
>no impact on any market for the posting.
>
>A similar argument can be made for quoting of private email messages.  Of
>course, revealing the contents of a private email message could run afoul
>of any of a number of non-copyright laws: defamation, invasion of
>privacy, and trade secrecy, to name a few.  So even if you won't be
>violating any copyright laws, you should consider other factors that may
>expose you to legal liability before revealing a private message's
>contents.
>
>Proponents of the implied license idea point out that Usenet postings are
>routinely copied and quoted, and anyone posting to Usenet is granting an
>implied license for others to similarly copy or quote that posting, too.
>It's not clear whether such implied license extends beyond Usenet, or
>indeed, what "Usenet" really means (does it include, for example,
>Internet mailing lists?  Does it include netnews on CD-ROM?).  If a
>posting includes an express limitation on the right to copy or quote,
>it's not at all certain whether the express limitation or the implied
>license will control.  No doubt it depends on the specific facts.  For
>example, was the limitation clearly visible to the person who did the
>copying?  Was the limitation placed such that it would be visible only
>after the person who did the copying invested time and money to get the
>posting, believing it to be without any limitation?
>
>With private email messages, a copier who relies solely on the implied
>license argument will probably lose, since it's hard to argue that by
>sending the private message to a limited audience, the sender intended
>for it to be copied and quoted.  For email messages to a public mailing
>list, the implied license argument may still be sound.
>
>These theories are largely speculative, because there has been little
>litigation to test them in the courts.  As a practical matter, most
>postings, with a small number of notable exceptions, are not registered
>with the Copyright Office.  As such, to prevail in court, the copyright
>holder would need to show actual damages (see section 2.5).  Since most
>of these cases will result in little or no actual damage, no cases have
>been be brought; it's simply too expensive to sue for negligible damages.

There is quite a bit of discussion on this topic in misc.legal newsgroup,
as well as in the lists faq-maintainers@mit.edu and cni-copyright@cni.org.

..Christopher Allen
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