Xref: utzoo news.misc:4129 misc.legal:13271 Path: utzoo!utgpu!jarvis.csri.toronto.edu!mailrus!shadooby!yale!cmcl2!stealth.acf.nyu.edu!brnstnd From: brnstnd@stealth.acf.nyu.edu Newsgroups: news.misc,misc.legal Subject: Re: Copyrights on Usenet Articles Message-ID: <600@stealth.acf.nyu.edu> Date: 5 Jan 90 23:22:10 GMT References: <946@crash.cts.com> <1989Dec21.000041.6034@ns.network.com> <45061@bu-cs.BU.EDU> <4198@convex.UUCP> Reply-To: brnstnd@stealth.acf.nyu.edu (Dan Bernstein) Followup-To: misc.legal Distribution: usa Organization: IR Lines: 143 The news.misc article quoted below illustrates several common beliefs about copyright law; I address the legal issues. Disclaimer: I'm not a lawyer, and I'm not familiar with any state laws outside New York. In article <4198@convex.UUCP> hamrick@convex.COM (Ed Hamrick) writes: > In article <45061@bu-cs.BU.EDU> ckd@bu-pub.bu.edu (Christopher Davis) writes: > >This article, excluding quoted text, is Copyright 1989 Chris Davis. > >Redistribution for profit is prohibited. This copyright statement shall > >not be construed to limit non-profit distribution, including but not > >limited to UUNET's news forwarding services. This article may not be > >gatewayed to GEnie without a license fee paid to the author. > > I've been noticing similar "Copyright" notices in numerous usenet articles [ ... ] > There appears to be a consensus that the only legal mechanism that can be > used to control the use of usenet articles is the Copyright laws. I've > never seen any assertions that any other law or regulation applies to > these articles. Copyright law is the most obvious protection for a published work. Trade secret law cannot apply. Patent law doesn't apply to the *expression* of inventions, only their production. Trademark law is never a major issue. Copyrights are designed to preserve distribution rights, and that's what they do. > There appears to be a commonly held belief that an author of a usenet > article can control the "right to copy an article" by asserting that > an article is "Copyright 1989 John Doe", Yes. ``All rights reserved'' is necessary for some countries. A circled c is customary, though I don't know any countries that require it if the word Copyright is present. Anyway, the owner of a copyright most certainly does control the legal right to copy an article. > and that the article may be > copied/redistributed under certain limited circumstances. Yes. This addition is a copyright limitation; in general, someone can limit or completely give up his right to X by declaring the limitation. Sometimes limitations are restricted by further laws: for example, a minor might not be able to refuse medical treatment just on religious grounds. Copyrights are not life-and-death issues where the government sees a need to butt in, so you can limit copyrights any way you want. Unpublished works are automatically copyrighted. Published works enter the public domain (i.e., lose their copyright) if they do not carry a copyright notice. In countries subscribing to the Berne Convention, even published works are automatically subject to copyright, so that the author must explicitly declare a work as public domain (and then distribute it!) if he wants to give up his rights. For the moment, those countries respect United States copyrights, so there's little immediate pressure for us to switch. Note that even in the United States, any indication of authorship (a signature, for example, or even my typed ``---Dan'') is usually construed as a declaration of copyright. However, damages for infringement will be higher if an explicit copyright notice appears. > On the > surface, this seems to be a perfectly acceptable practice, and is used > in many computer journals (see ACM journals as an example). Yes. It works quite well and is easy to deal with in court. > There are several problems I see in trying to extend this practice to > articles deliberately transmitted to usenet: > > 1) Anything printed with copyrighted materials is generally sold, > not given away. It seems doubtful that a judge would award damages > under the Copyright laws to someone who gives away tens of thousands > of copies of their works to the public (and then claims economic > damage from someone making a few hundred more copies and selling them). You are correct in bringing up enforcement as a separate issue. 17 USC 105 (I think), the Copyright Act of 1976, classifies certain copying as ``fair use,'' so that it does not constitute infringement. It doesn't give explicit rules to decide what constitutes fair use. However, it does say that such a decision must consider several issues: the nature of the work (you can't make any money by copyrighting a document consisting of the word ``the''), the amount copied, the effect of copying upon the original work and its distribution, the use of the copies (profit versus nonprofit), etc. By now there's enough case law that it's easy to tell when you're safe; the government publishes a booklet with certain magic numbers below which you couldn't possibly be taken to court. I doubt that any judge would consider Genie's distribution of a copyrighted Usenet article to be fair use, because Genie is making a large number of copies for profit. On the other hand, the damages would probably be limited to a small multiple of the money Genie makes from those articles directly. (If they take in X dollars from each of M subscribers each year, and there are N articles each year, then I wouldn't be surprised at damages of XM/N.) In copyright infringement, as in the rest of civil law, the most important issue is almost always money. > 2) Someone who transmits an article to usenet knows that everything > they send is automatically sent to any site connected to usenet. > It seems doubtful that damages would be awarded to someone who > claims economic damage from something they themselves caused (the > transmission of their copyrighted materials to all connected > usenet sites). Nobody's claiming damages for USENET distribution, which is intentional. It's the GENIE distribution that's infringing. Here's a parody of that argument: 2) Someone who publishes a book with A-W knows that everything he writes is automatically sent to any bookstore serving A-W. It seems doubtful that damages would be awarded to someone who claims economic damage from something he himself had caused. True, but what about the bookstore that makes money behind the author's back by making more copies and selling them in its town? > The following is an example of why I believe that copyright notices > embedded within usenet articles aren't worth the paper they're printed on: > > This article, excluding quoted text, is Copyright 1989 Ed Hamrick. > Permission to copy and redistribute this article is granted provided > it is printed on yellow paper, stored on 160 KByte floppy diskettes, > or displayed on DEC VT102 terminals. Fine. (You don't need the ``excluding quoted text'' part.) You're asserting your copyright, and giving a rather ridiculous limitation that amounts to no limitation at all. > I believe that this somewhat absurd paragraph (apologies to Christopher Davis) > illustrates that there is not an unlimited right to assert rights under > the Copyright laws for automatically distributed usenet messages. Of course there is. Your absurd copyright notice is perfectly legal and possibly enforceable. If GENIE makes money by selling copies of your article, and you can prove that GENIE did so (which is easy), then you could be awarded damages. (In practice, as a mere distribution medium, they'd only be liable for contributory infringment; they'd still have to pay.) Unauthorized profit from a copyrighted article is very dangerous. ---Dan