Path: utzoo!utgpu!water!watmath!clyde!att!osu-cis!tut.cis.ohio-state.edu!bloom-beacon!apple!bionet!agate!eris!mcb
From: mcb@eris.berkeley.edu (Michael C. Berch)
Newsgroups: news.misc
Subject: Re: The Cincinnatus Society of Pinheads (copyright law)
Message-ID: <15995@agate.BERKELEY.EDU>
Date: 25 Oct 88 20:08:05 GMT
References: <15638@agate.BERKELEY.EDU> <7068@dasys1.UUCP> <391@flatline.UUCP> <15798@agate.BERKELEY.EDU> <396@flatline.UUCP>
Sender: usenet@agate.BERKELEY.EDU
Reply-To: mcb@eris.berkeley.edu (Michael C. Berch)
Organization: Information Science Consultants, Inc., Pleasanton CA
Lines: 72

In article <396@flatline.UUCP> erict@flatline.UUCP (j eric townsend) writes:
> In article <15798@agate.BERKELEY.EDU>, mcb@eris.berkeley.edu 
> (Michael C. Berch) writes:
> > 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..."
> 
> 1.  In the first place, how can Usenet posting be considered publishing?

[See discussion below...]

> 2.  It would be rather easy to post a duplicate of the original message,
> with a copyright, that would replace all existing copies of the message
> (if any still exist).  It would seem that weemba, the originator of
> the articles in question, could cancle the original article, and repost
> the article, with a copyright, and be protected under the law.  (This is
> where I get the term "retro-copyright".  Maybe it's the wrong word to use.)

This is an open question as to whether it would be sufficient to meet
the test of Section 405.  Personally, I don't think so, but there are
really no experts as to this.  But, in any event, it would not subject
the copiers of the version that was previously posted without notice
to any penalty for infringement (see the remainder of Section 405 for
this), and more importantly, if they never received actual notice of
the new version, presumably thery could continue to recopy the
original without penalty.  But this is still the weaker leg of the two.

> >  So posting a Usenet article without copyright notice, and
> > then deciding later that it might be nice to "retro-copyright" it, does
> > not wash.
> 
> Again, this assumes that posting on Usenet falls under the legal definition
> of "publishing", does it not?  Since "mail" is copyrighted, couldn't we
> just consider these messages "mass-mailings"?  Or, should we all add
> a C-notice in our .sig, leaving the rights to duplicate w/in the domain
> of Usenet open to all?

There should be little if any question as to whether posting something
to Usenet, except possibly to an in-house local newsgroup, constitutes
"publishing" for the purpose of copyright law (or defamation law, for
that matter, either).  Since no court has, to my knowledge, ruled on
*any* matter involving Usenet per se, it remains a technically open
question, but not a particularly debatable one.  

And, by the way, "mass-mailings" are publication as well; the statement
"mail is copyrighted" is inaccurate; the only reason mail is protected
even without copyright notice is because it is unpublished, and it is
considered unpublished *only* where it is intended to be a private
communication (that is, the sender knows who the recipients are, it is
sent under cover (physical or electronic envelope) and is not intended
for public inspection).  A "mass"-mailing is no different than any
other form of public distribution of copies, even if the list of
recipients is a smaller set than the general public.

"Publication" is defined in Section 101 as "the distribution of copies
... of a work to the public by sale or other transfer of ownership, or
by rental, lease, or lending.  The offering to distribute copies ... to
a group of persons for purposes of further distribution, public
performance, or public display, constitutes publication. ..."  There is
some jusrisprudence to indicate that electronic publication, though it
may not involve the physical transfer of media embodying the work, is a
form of publication rather than public performance (which in itself
does NOT constitute publication).  So I do not consider the matter
seriously in doubt.  

Michael C. Berch
mcb@eris.berkeley.edu / mcb@tis.llnl.gov / ucbvax!eris!mcb