Re: AOL and copyright laws

I don't think you're talking in a circle. Putting aside the issue of contract-- and AOL never made ME sign away any copyrights, and copyrights can only be transferred BY a writing--I think you're the victim of some overly optimistic (nay, one might say grandiose) claims of ownership by the nice gentleman.

Re Public Domain: that claim of his MIGHT work, as to SOME (very short) posts, for copyright law has long refused to cover short phrases and the like. Also, I suppose an argument could be made that many posts are like casual conversation, not meant by those sending them as works of authorship. (Copyright subsists in "original works of authorship fixed in any tangible medium of expression", sec 102).So some of what is posted might be ineligible for copyright and thus in the public domain. Nevertheless, postings are "fixed" by authority of the senders (on the hard drives of the recipient mainframes) and most ARE authored with some thought & intellectual effort (assuming the latter is required), so at least a substantial portion of postings will be copyrightable. See,e.g., the Hotchner/Hemingway case decided by the NY Court of Appeals. Anything in which copyright subsists, is (of course) by definition not in the public domain.

Posting or other forms of 'publication' don't divest you of your copyright. Prior to '89, any publication should have been accompanied by copyright notice (c in a circle, date of pub, and name of claimant) but that's not required any more.

As for issues of collective work, joint authorship, etc.: Maybe an exchange of postings might be construed as a 'conversation' and maybe a conversation might be construed as a joint work of several participants. But except perhaps for postings done in "chat" mode, I doubt it, given the statutory definition of joint work: 'a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 USC sec 101.

A collective work (like a magazine or encylclopedia) is quite different. That characterization seems to assume the individual components each have their own copyright (which is inconsistent with claims that the postings are all public domain).

As a matter of terminology, a collection of public domain fragments might bear copyright as a "compilation", not a "collective work"-- but still, the author of a copyrightable compliation has to put something into the effort MORE THAN mere effort. See the Feist case.

I find it really hard to conceptualize how the provider of the medium has any copyright claim in anything posted by individuals. Maybe the provider could try to base something on having provided the 'mode of organization', but that seems too far a stretch in this context.

Wendy J. Gordon                 |		
Professor of Law                |  Internet:  wgordon[_at_]bu.edu
Boston University Law School    |  Phone:     617-353-4420
765 Commonwealth Avenue         |  Fax:       617-353-3077
Boston, MA  02215               |
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On Wed, 15 Feb 1995, Heidi Howard wrote:
>
> I just got off the phone with a nice gentleman at AOL who told me that all
> public posts on the board are public domain OR AOL has a license, based on
> their terms of service agreement, to edit, remove, move, or alter those
> posts. In the Terms of Service, there is also an indication that both AOL
> and the user hold a copyright in the work, because it is a joint work (I
> think they actually call it a collective work).
> Is anyone here familiar with AOL's rules, or can give me further input
> about this-it seems obvious that AOL has the right to edit the boards, and
> that there can be no expectation of privacy on a public board, but how can
> that make something public doman? or how can something be a collective
> work? Is it because AOL supplies the software & interfact for reading,
> posting and downloading, and therefore the "writing" would not be possible
> without AOL's interface/input?
> I think I'm talking in a circle!
>
> Heidi Howard
> hhoward[_at_]cap1.capaccess.org * You may know what you need but
> or * to get what you want, better see
> penny115[_at_]aol.com * that you keep what you have.
> Opportunityu is NOT a lengthy visitor...
Received on Thu Feb 16 1995 - 16:22:15 GMT