Path: utzoo!utgpu!attcan!uunet!lll-winken!lll-tis!helios.ee.lbl.gov!pasteur!agate!eris!mcb
From: mcb@eris.berkeley.edu (Michael C. Berch)
Newsgroups: news.misc
Subject: Re: The Cincinnatus Society of Pinheads
Summary: "Oh God here we go again with copyright law" is RIGHT
Message-ID: <15798@agate.BERKELEY.EDU>
Date: 21 Oct 88 06:18:42 GMT
References: <15638@agate.BERKELEY.EDU> <7068@dasys1.UUCP> <391@flatline.UUCP>
Sender: usenet@agate.BERKELEY.EDU
Reply-To: mcb@eris.berkeley.edu (Michael C. Berch)
Organization: Information Science Consultants, Inc., Pleasanton CA
Lines: 71

In article <391@flatline.UUCP> erict@flatline.UUCP (j eric townsend) writes:
> I think Copyright law should be included in the "things to learn before
> you're allowed access to Usenet" file....

Agreed, and I would suggest that Mr. Townsend be among the first to go
back to school on the subject.  I do not generally bother to criticize
people who are not lawyers when they make incorrect assertions about
legal matters, for the same reason that my own babblings about (say)
medicine or chemistry must elicit sadly amused grins from physicians and
chemists.  But considering the above, here we go again...

> [Tom Neff:]
> > Unfortunately I believe anything you post here is in the public domain
> > unless you take the trouble to (C) Copyright your remarks every time.
> 
> Bzzt.  Under the most recent Copyright laws, anything you produce is
> protected the instant you create it.  You can retro-copyright works,
> however, you aren't as protected by the laws as you would be if you
> had Copyrighted it to begin with.

Bzzt bzzt.  Mr. Neff is quite correct, with the trivial exception of
the present legal bogosity over the use of "(C)" vs. a real live
copyright symbol.  There is no such thing, under U.S. copyright law,
as "retro-copyrighting" anything.  There is a code section (Sec. 401)
that mandates the inclusion of notice of copyright on "...all publicly
distributed copies from which the work can be visually perceived,
either directly or with the aid of a machine or device."  What this
means, people, is that if you publish (in the legal sense, which in
this case would include the colloquial sense) without a copyright
notice, you have -- subject to the discussion below -- lost your copyright 
protection.  

But what about Section 405, which excuses omission in some cases?

Section 405 excuses omission in three cases, the only interesting one
for the purposes of this discussion being Sec. 405(a)(2), which says
that the omission does not invalidate the copyright in a work if

	"registration for the work has been made before or is made
	within five years after the publication without notice, and a
	reasonable effort is made to add notice to all copies or
	phonorecords that are distributed to the public in the United
	States after the omission has been discovered..."

There are two important points here.  First of all, the practicability
of adding -- or attempting to add -- notice to all copies of a Usenet
article is seriously suspect.  And "adding notice" means exactly that
(there are some cases on this); it does NOT mean sending letters to
people saying, "Oh, by the way, that book I shipped you a while back
was copyrighted".  It means getting one's hands on the copies
(literally or figuratively) and adding a copyright notice in the
appropriate manner (printed, electronic, etc.).  

Much more importantly, the section refers to acts "after the omission
has been discovered." This means, most emphatically, that only
inadvertant omissions are excused, not omissions due to ignorance of
the requirement of notice.  There is at least one leading case on this,
dealing with, if I remember correctly, photographs transferred onto
T-shirts.  So posting a Usenet article without copyright notice, and
then deciding later that it might be nice to "retro-copyright" it, does
not wash.

Jordan Breslow, who is an attorney, recently explored the issue of
omitted notice (in the context of copyrighted software) in a Usenet
article posted to misc.legal and news.software.b.  The message-ID 
was <1930@vaxwaller.UUCP> and it is about 10 days old, so may still be
available on your system.  Read it.  (If it's expired, I think you
might be able to get a copy from vaxwaller!lisa.)

Michael C. Berch
Member of the California Bar
mcb@eris.berkeley.edu / mcb@tis.llnl.gov / ucbvax!eris!mcb