From: mcb@net.bio.net (Michael C. Berch)
Date: Tue, 1 Feb 94 14:10:45 PST
To: cypherpunks@toad.com
Subject: Re: archiving on inet
Message-ID: <9402012207.AA29009@net.bio.net>
MIME-Version: 1.0
Content-Type: text/plain


Jason Zion writes:
> Yep. When you're providing a netnews feed, you're acting as a node in a
> store-and-forward network. A CD-ROM is not a part of a store-and-forward
> network; it is a permanently fixed repository of information. You can't hold
> up a netnews feed in a courtroom and point at it saying "there it is"; you
> *can* do so with a CD-ROM.
> 
>    So I suppose you want to give some
>    kind of list of what types of media are acceptable for transmitting
>    netnews feeds, and which are not?

You seem awfully confident about something that has never, to my
knowledge, been litigated at the appellate level.  The difference you
posit between a netnews feed and a CD-ROM seems very tenuous to me --
not the kind of thing I would feel supreme confidence in trying to
convince a judge of.  As far as "holding something up" and saying
"there it is", I could do the same thing in court with a hard disk
containing a news spool and a CD-ROM drive containing a CD with a copy
of a news feed.  Set up two windows side-by side and they have the
same article in them, right down to the Message-ID, byte count, even a
CRC or SNEFRU checksum.  *Now* try to convince the court they are
different animals for copyright purposes...

> A CD-ROM isn't a medium for transmitting netnews feeds; it's a permanently
> fixed copy of the contents of such a feed. Static versus dynamic; permanent,
> ephemeral. Is this hard to understand?

Yes, very.  And I have been in computing since 1975 and a licensed
attorney since 1981.  So I think it is fair to say that if I find this
murky and confusing, and believe that copyright law does not divide these
types of cases into neat little boxes, then others may as well.

>    The plain and simple fact is: When you post a message to usenet, you do
>    so with the expectation that others will receive it.  You can have no
>    way of knowing or limiting who may get it; that is given by the nature
>    of the network.  Usenet news is, and is intended to be, publicly
>    accessable information.  If there is something you don't want
>    distributed, then DON'T POST IT!
> 
> Learn a little about law; while you're at it, learn a little about usenet.
> When you post a message to usenet, you have tossed it into a flood-routed
> store-and-forward network. You implicitly give permission for copying
> appropriate to the propagation of messages in that network. You neither
> grant permission nor withhold permission for Fair Use. Everything else,
> though, is not granted unless explicitly granted.
> 
> If I post a message, under the terms of the Berne Convention and current US
> copyright law, a recipient was not granted the right to print a copy and
> publish it in a book. What makes you think I granted them permission to
> publish a copy in a CD-ROM? The only permission I granted was that they
> could (a) read it and (b) forward it via usenet protocols.

Except that it is extremely difficult to put one's finger on "Usenet
protocols".  *Most* people are using (for example) RFC1036-compliant
Netnews article formats and either NNTP or UUCP for transport.  BUT,
this certainly does not apply to everybody -- some people read
newsgroups as e-mail (SMTP, UUCP, QuickMail, cc:mail, Lotus Notes,
etc.).  Some people receive netnews feeds in the form of magnetic
tape; some as large batched file transmissions on IBM mainframe
networks.  Some get news articles via friends who operate informal
"clipping services" and save and print articles of interest and send
them via snail-mail.  Some people archive newsgroups and put them on
FTP/gopher/WWW/WAIS server where they may be indexed and  retrieved 
years later.  

I would not want to have the burden of convincing a court that any of
these are beyond the purview of "Usenet" and thus, in your scheme,
implicitly copyright infringements.

It is not that I vehemently disagree with any of the points made
above -- who knows what will eventually evolve as a legal standard? --
I just think that it is a wildly unsettled area and pronouncements
of bright-line criteria in the absence of relevant legislation *or*
jurisprudence is fatuous at best.

--
Michael C. Berch
mcb@net.bio.net / mcb@postmodern.com