Xref: utzoo misc.legal:7977 news.groups:8418 news.sysadmin:2204 Path: utzoo!attcan!uunet!lll-winken!ames!pacbell!att!cuuxb!dlm From: dlm@cuuxb.ATT.COM (Dennis L. Mumaugh) Newsgroups: misc.legal,news.groups,news.sysadmin Subject: Re: The Coming of the Berne Convention Message-ID: <2648@cuuxb.ATT.COM> Date: 24 Mar 89 17:36:21 GMT References: <37625@bbn.COM> Reply-To: dlm@cuuxb.UUCP (Dennis L. Mumaugh) Followup-To: misc.legal Organization: ATT Data Systems Group, Lisle, Ill. Lines: 168 In article <37625@bbn.COM> cosell@BBN.COM (Bernie Cosell) writes: I'm told that the Berne Convention is coming to the US on 1 April. I've been trying to understand its implications and I'm having a bit of trouble with it... but that's my problem... What I'm concerned about is that there's been virtually NO commentary here about what impact it will have for usenet. [NB: I've let this be "world" distribution, even though this is only really a "us" problem because most of you *already* deal with the Berne Convention and, perhaps, can help illuminate the issues and problems for us. I expect that foreign countries are just as ignorant on its impact. Only one legal study was done -- by USENIX with respect to Stargate and that is not fully applicable as it was a true broadcast. Being subscriber oriented the rules MAY differ. I have been lead to believe that the *major* difference for us in the US with the Berne Convention is that the default for "public domain" is reversed. That is, that in the current environment I think it is the case that if you "publish" something with no copyright, it is in the public domain, unless and until you make rather spirited efforts at (in essence) undoing the publishing. By contrast, ALL published items are implicitly copyrighted by their authors under the Berne Convention. (a) Is the fact-of-posting enough to authorize a group's moderator to "reprint" a posting? I assume so. The law is silent on this but a lawyer with legal resaoning could argue that it is analogous to that of a TV network showing a Movie (such as Gone With The Wind). All stations have a one time license to broadcast. Perhaps a cable network is a better model though. For USENET, posting an article is a one time license to re-broadcast and use. The bit about archiving is analaogus to a person making a VCR tape of the show and is allowed under the fair use doctrine. As far as anybody, moderator or not, making copies of a posting for commerical use that is permitted ONLY if the poster so permits. Remember that moderation is of two types: 1) an article is mailed to a special address for moderation. 2). it is "posted" as a normal article and the software invisibly mails it to a backbone machine who forwards it. A moderator may not know the difference. A poster may not be aware s/he is posting to a moderated group. Also mailing lists being gatewayed are also possible. The lawyer could reason that the moderator is an agent acting under agency for a poster. If the courts asccepted this a moderator has no authority to "divert" the article for other uses. Brad Templeton's policy of requiring formal submission of a posting eliminates much of the above problem. I trust that he checks to see that submissions are by humans and not via automatic software. I also trust his request or acceptance has the verbiage about granting republicaton rights. For a moderator to take an article s/he posts and then use it elsewhere: that is the covered by the concept of republication rights. E.g. book rights, paper back rights, serialization rights. I can't legally take a set of sources on comp.source.unix and build a floppy and market it unless I have everybody's written permission (moderator or not). (b) If you REALLY don't care (as 99+% of us on usenet probably don't), what is the Berne-approved method for announcing that something is NOT copyrighted? We've occasionally joked that some folk on the net should just stick a "copyright 1989 all rights reserved" in their .signatures and that eliminates WHOLE bunches of questions about where your postings can go and what people can do with them. It is now the other way: would it be appropriate to include a "not copyrighted" notice in ones .sig?? The best is the way RAND Corporation did with their editor code: Copyright 1984 Foobar Corp. Copyright abandoned. That is the techinal meaning of "public domain". The other meaning is material that does not have a copyright in the first place such as government documents. (c) what is "fair use" in this environment. If I understand the convention properly, if I see something interesting on rec.water.sports, I specifically CANNOT forward it to a friend, nor can I repost it to a different newsgropu ("bbn.bboard", for example). What *can* we do? As I said above, you could print a copy on the printer, squirrel one away for posterity. You could gateway it to another bbs system as long as 1) the orginator did not prohibit 2). left authorship and identification alone and 3). did not profit from it. Otherwise it is commecial use and subject to litigation. Giving a copy to a friend is a gray area. Making 15 copies for a class is also in a gray area. Talk with the Stargate people. (d) how will this impact the sources/binaries groups? I have always presumed that anything that comes in with no notice is "copyright free" and I have had no qualms about installing it on my system, or sending it to friends, or modifying it (and maybe even reposting the "improved" version). All of this seems like it will become marginally-, if not il-, legal with the "implicit copyright" in place. --- mabye the moderators of the binaries/sources groups will/should put a "this is in the public domain" notice on their shar files as they distribute them (and of course, they''ll have to explicitly get that permission from the authors before they can do so). Fair use would allow you to install it on your machine. Giving it to your friends is subject to copyright rules. Placing it in your product for commercial use -- see a lawyer and get a release. Giving credit is essential. (e) what is the implications for archives? does posting to a newsgroup imply that the poster is giving permission someone the ability to "republish" their "work" in any way other than the implicit one (that is, of forwarding the particular newsgroup in question around usenet)? Will archive-runners have to make posting-by-posting requests to take the (now copyrighted) postings and including them in their "collection"? An archive server is probably illegal unless the archiver is given authorization to do so. By the way, an email message giving authorization is not acceptable as it can be forged. This was proved in 1965 by a famous net personality when he turned in a computer listing to Dr. Earle C Schweppe proving an impossiblty. Brad is in a touchy situation when he gets a posting with an okay, courts won't accept that as evidence. But then again courts won't accept USENET as evidence. I ain't a lawyer, so I'm sure that the turns and twists of sorting this all out go WAY beyond the simple, obvious problems that just immediately came to mind. Anyone thought about that? Any lawyers in m.l able to give us any guidance on this? Anyone worried? Anything a lawyer said would be merely speculation. USENET and FIDO and .... are unique. No law covers the new technology of infomation such as this. Part of the r.h.f conroversey is just what do people think is ethical. Someday Congress and/or the courts will look at USENET and call it "prevailing community standards" or some such and perhaps use it as a guidelines. But until there are court cases it is all speculation. In closing USENET and copyrights are a mixed bag, a lawyer will take the case and argue any way you want, cheerfully, there are no precedents and nothing similar. Ultimately the law will be decided by a judge who may decide based on such important legal concepts as how he feels that day and whether he got cuttoff by someone that morning in troaffic. -- =Dennis L. Mumaugh Lisle, IL ...!{att,lll-crg,attunix}!cuuxb!dlm OR dlm@cuuxb.att.com