Re: who owns newsgroup discussion thread?

On Tue, 26 Oct 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> It's a bit disingenuous to say that no court has ever found archiving
> Usenet posts to be infringement. No court has ever found the opposite,
> either, because AFAIK no court has ever considered the issue.
>
> I think perhaps the two of you are approaching this from different
> perspectives. Ari is probably right that what DejaNews does is massive
> copyright infringement, and that if somebody decided to sue them they
> would lose. Lance is probably right that DejaNews provides a valuable
> public service, and that that legal result would be a bad thing. This
> isn't the only case in history where copyright law leads us to a
> troubling result.

While Mark is technically correct that no court has ruled specifically on the legitimacy of archiving Usenet, I am aware of at least 3 cases involving copyright infringement and Usenet:

• RTC v. Netcom, holding that a Usenet provider was not directly liable for infringement.
• Playboy v. Webbworld, holding that providing a subscription service to pictures that were distilled from Usenet was direct infringement
• The "Giffynews" case (an unpublished opinion), reaching the same result as the Netcom case in a similar situation.

[Unfortunately I'm not at my desk, so I don't have the cites handy]

I think all three cases do bear on the question of whether archiving Usenet was infringement--since if archiving Usenet was infringement, the RTC v. Netcom court (and the Giffynews court) could not have reached the results it did. That Webbworld reached a different result is a product of (among other things) Texas courts, bad lawyering, bad judging and bad facts. And, in any event, the Webbworld holding, at least as to direct infringement, may have been overturned by the DMCA.

I disagree with Mark that a court would find that Deja and its ilk are engaged in massive copyright infringement. By merely providing a web interface to Usenet, as opposed to permitting users to access articles via an NNTP reader, Deja et al don't really do anything different from other Usenet providers. To find Deja et al liable for copyright infringement would be the death of Usenet (aside: would that be a bad thing? :-) ), a result the Netcom court was not willing to cause. Further, if the proper steps are followed, the DMCA should preempt any direct infringement claim for Deja et al.

Disclaimer -- one of my long-time clients is RemarQ Communities, a Usenet service provider.

Eric.

---
Eric Goldman (formerly Eric Schlachter)
Cooley Godward LLP, Palo Alto, CA
ericgoldman[_at_]theglobe.com
http://members.theglobe.com/ericgoldman/


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