Comments re TidBITS re Copyright of Internet postings
Date: Tue, 12 Jul 94 09:45:09 PDT
Subject: Comments re TidBITS re Copyright of Internet postings
From: John Gilmore <firstname.lastname@example.org>
I'll append my own opinion at the end. It's interesting that we at
EFF give at least three different answers (though Barlow's quote was
simply misinterpreted, I think). This is part of why we don't have an
official position on intellectual property -- we realize that we're
each seeing its trunk, hide, or tusks rather than the whole elephant.
------- Begin Forwarded Message
Forwarded-by: email@example.com (Peter S. Langston)
Forwarded-by: bostic@vangogh.CS.Berkeley.EDU (Keith Bostic)
From: Wendell Craig Baker <firstname.lastname@example.org>
Enclosed is an article by Susan G. Lesch <email@example.com> from the
latest TidBITS (TidBITS#233/04-Jul-94) entitled ``Your Work On TV? A
View From The USA.'' Its more of an essay really, but I'm forwarding
it because the author did do some interviews with industry people
in addition to putting forth a viewpoint. ...
... [The bulk of the Forwarded Message deleted here... -psl] ...
------- End of Forwarded Message
John's opinion: Postings are copyrighted at their moment of creation,
under law. Sending them to the Usenet without adding an explicit
copyright makes a strong case for anyone's ability to copy it,
however, since the way Usenet works is that each recipient is
encouraged to pass copies of each message on to its neighboring sites
(automatically, without human intervention). Under prior case law, if
you distributed a work widely without an explicit copyright notice,
you have to recover control of those copies before you can prosecute
someone for reproducing them. Case law on widely distributed works
without explicit copyright notices may be sparse since we adopted the
Berne Convention (which changed these rules), so this might change.
Occasionally when some people in the Usenet made regular use of other
peoples' words in ways that they disliked, explicit copyrights would
spring up on Usenet. My favorite, which was designed to kill Usenet
distribution services that prohibited re-distribution of the received
Copyright 1987 John Gilmore; you may redistribute only if your recipients may.
Similarly, copyrighted code is frequently distributed via Usenet, with
explicit copyright notices that limit distribution in particular ways.
The GNU software (with limits on distribution of binaries w/out
sources) or the Berkeley Unix software (copy at will, but don't use
our name in advertising) are the most common examples. In these
cases, distribution of the code via Usenet is OK within the stated terms
of the copyright.
Now take the case where the explicit copyright contradicts the
operation of the Usenet software. Example: "Copyright 1994 Joe Blow.
Nobody can copy this without a written letter from me giving them
permission.". If the owner posts it to the Usenet, they are going to
have a tough time explaining to the judge why they want to sue someone
for copying it. The owner herself put it into a system that would
automatically cause tens of thousands of peoples' machines to copy it
and forward it to their friends!
It's the above conflict that causes people to assume that if you
post it to Usenet (without explicit terms), it's freely available.
They could assume that your terms don't allow copying -- but that
wouldn't be consistent with your actions. So they assume that your
terms DO allow copying, at least within the Usenet. I think this is
where Mike Godwin's "De minimus non curat lex" came from.
If something resembling consensus ever appears on the net about
*exactly* what terms should be assumed on uncopyrighted Usenet
postings, we can hope that courts will follow it. People who disagree
with the consensus can simply put their own variant copyright terms
into their message header or signature.
PS: There's a further distinction between Usenet and email; email,
even to mailing lists, is often considered "private", while a posting
to Usenet is normally considered public. Many mailing lists have
publicly-accessible archives of all messages, though, and there are
private newsgroups (internal to companies, for example), so the line
is not 100% clear. Before the Berne Convention, this made a
difference: you could hand unmarked copies to your friends, and still
add a copyright notice later to control public distribution. But not
if it got out to the public before you added the notice. I doubt these
issues have been worked out under Berne yet.
© 1994 Peter Langston