Re: Listservs and Copyright

From: Bruce Hayden <bhayden[_at_]copatlaw.com>
Date: Fri, 13 Oct 1995 06:22:06 -0600

> If someone posts a message to an Internet discussion list (such
> as CNI-COPYRIGHT), can it be considered an "open letter" and be
> subsequently republished in its entirety without permission in a
> periodical such as "Time" or "Newsweek," for example?

I would rephrase this to say "without additional permission". In my mind, license, primarily implied in fact, is the primary basis for the Internet.

So, if you are looking at implied license, you look at the reasonable expectations of the poster. Does he reasonably expect that his message will end up in Time or Newsweek? I would say no.

> What if the publication is free? Is such publication fair use because
> there is no economic impact?

Well, obviously this prong of fair use would disadvantage Time and Newsweek.

> And what if the message is published with comments? Although the
> message was posted in it's entirety, is it fair use on the grounds of
> using it for comment and criticism?

You seem to be going to a fairly great effort to santitize the work with fair use. Of course the real question is whether the reason for the publication is comment and criticism, or the reason for the criticism is the publication.

> Since it is posted publicly, is the author giving implied permission
> to copy it (many email programs automatically copy the text of
> messages in replies), forward it to other lists, etc?

Bingo. Unfortunately, this does not mean that he is giving permission to do anything imaginable with the message. Rather, the persmission extends to the reasonable expectations of the poster. Which probably does extend to your suggestions, but may not extend to Time and Newsweek.

Let me also say that there is another theory out there that may have some relevance. I call it the "giant copy machine" theory. In it, you, the poster, are the one essentially making the copies as long as the copies being made are done so automatically as a result of your posting.

Thus, when you post to an unmoderated listserv list, any copies made up to and including the copy on my harddrive are made by you, and thus do not require a license for any of your original expression. (But of course would for the stuff that is not your expression). This theory is based more on agency theory and vicarious infringement. Note though that it ends when the missive is placed on my harddrive, since reading it from there is discretionary on my part. This of course requires license.

> Does the author have any moral or civil rights other than copyright?

My personal feeling is that "netique" in extremely tightly tied to the above mentioned implied license.

> In fact, what copyright and other rights do I have in this very
> message?

You have all the rights granted a copyright holder under 17 USC 106, subject to any licenses you have granted.

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The preceding was not a legal opinion, and may not be my employers'. Orignal portions Copyright 1995 Bruce E. Hayden,All Rights Reserved. My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain.

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Bruce E. Hayden                                bhayden[_at_]acm.org               
Austin, Texas                                  bhayden[_at_]copatlaw.com

Received on Fri Oct 13 1995 - 11:31:41 GMT