Re: Copyright Infringement Happening at Conference Group - Help!

Thomas Workman <tworkman[_at_]erols.com> wrote
>
> John Lederer <johnl[_at_]ibm.net> wrote:
> >
> > Would you like to take a stab at explicating why someone taking
> > something off the web violates copyright, but your repeating of the
> > entirety of Brigid's message does not?
>
> Fair use. When one sends an Email, one issues a fair use license for
> others to forward it withor without comment. That is the nature of the
> medium. One gives a license for a web browser to "copy" the web page so
> that antoher can view it with their browser. That "copying" is fair
> use. Copying the web page, or major parts of it, so that they become
> part of another's work -- is INFRINGEMENT, and not fair use. Linking to
> a web page is a more complicated issue.
 

I recognise it is dangerous for an English lawyer to comment on US law, but I'd be surprised if our legal systems are so different on this point. I think you're confusing fair use and a licence. Fair use is permitted by statute, and does not need a licence, and applies regardless of medium. Reading a book does not need a licence, but reading something electronically does because it inevitably involves copying. The licence will usually be an implied licence (or non-derogation from grant for disciples of British Leyland v Armstrong). The issue is the extent of the implied licence. It must extend to copying the whole of a web site into the cache of a browser, because that's the only way you can read the whole web site. Fair use would not cover that. When someone subscribes to a listserver, he or she grants an implied licence to the moderator of the listserver to copy postings to other subscribers, and to those other subscribers to copy them into their own machines from the mail server. Quoting is a convention to place comments in context. A subscriber impliedly consents to it. It is less necessary with threaded off-line readers, and the limits on quoting are not so much fair use as not quoting so much as to annoy other readers.

     The reason that plagiarising listserver postings or web pages by incorporating them in other works is not covered by the implied licence is that such plagiarism is not necessary to give business efficacy to the transactions of reading and commenting to the listserver, or browsing the web site.

                  Richard Cole
                  Northern Intellectual Property Chambers
                  Lancaster Buildings
                  77 Deansgate
                  Manchester M3 2BW
                  UK
                  +44 161 661 4444
                  Richard.Cole[_at_]lbNIPC.com
                  http://www.lbNIPC.com/