Xref: utzoo news.misc:4136 misc.legal:13301 Path: utzoo!utgpu!jarvis.csri.toronto.edu!mailrus!ames!pacbell!sorinc!magik From: magik@sorinc.UUCP (Darrin A. Hyrup) Newsgroups: news.misc,misc.legal Subject: Re: Copyrights on Usenet Articles Message-ID: <9001070301.AA10109@sorinc.UUCP> Date: 7 Jan 90 04:01:57 GMT References: <946@crash.cts.com> <1989Dec21.000041.6034@ns.network.com> <45061@bu-cs.BU.EDU> <4198@convex.UUCP> <600@stealth.acf.nyu.edu> Reply-To: pacbell.PacBell.COM!sorinc!magik Followup-To: news.misc Distribution: usa Organization: Yes, I'd like that. Lines: 197 Flames-To: /dev/null In article <600@stealth.acf.nyu.edu> brnstnd@stealth.acf.nyu.edu writes: >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. > >> 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. To begin with, as of last year, much of this is moot, since the U.S.A. is now a member of the Berne convention, so all works now carry a copyright regardless of this is stated or not. But, for formal declarations of copyright, the C in a circle is a synonym for the word Copyright. The use of (C) or (c) does not qualify as () is not a circle. In any case there must be either one or the other, and in many cases, both. It is also proper to use the phrase "All rights reserved" in order to afford full protection in many countries, (including some in Latin America/South America). >> and that the article may be >> copied/redistributed under certain limited circumstances. > >Unpublished works are automatically copyrighted.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. We are now members of the Berne Convention, and so the formal declaration of copyright is no longer neccessary. However, that only applies to those countries that are also members of the Berne Convention, so you are always better off using "Copyright 1990 by Joe Smith. All Rights Reserved." in anything that may have international access. (Like, say, Usenet). >> 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. Correct under most conditions. >> 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). He is right here. Or at least in part. It is commonly known that the entity known as "Usenet" is a public-domain, albiet loosly connected organization of "subscribers" much like a bulletin board. It is also known (or should be) by everyone on the net that any article you submit may be read by [hundreds of] thousands of people all over the world, and that you are not expecting compensation for anything submitted to this network. Knowing that, and also knowing that it is not feasible, as a manpower or economics issue for every site to screen every message for possible distribution restrictions in this public-access system, it would follow (and likely be held in court) that your act of submitting the article places it in the public domain at least as far as distribution goes, as you are purposefully making the article available for unrestricted public access all over the world. Any distribution restrictions could not be justified in that case, and so you would not be able to enforce any claims of misuse by usenet sites recieving your article(s). Of course, if an individual were to take your message and sell it verbatim to a magazine or such for a profit to him/herself, then you may have a case, although it still would be hard to win, especially if they changed the text in any form, and you still have to prove it. Remember, you cannot copyright an idea, only a particular implementation of an idea. >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.) I believe you are in error here. Assuming that GEnie eventually becomes a real usenet site (allowing both sending and recieving of messages, although there is no law or rule that requires or even assumes that all usenet sites must allow 2-way traffic), it would then become nothing more than one of many usenet sites that charge their users access to their network, and use of facilities. They are not specifically charging their clients a surcharge to read your article over and above that what they would pay to access the network itself, nor are they attempting to sell the rights to your articles. They would be doing what many other usenet sites do, providing a service to the public, from which they are recieving compensation. There is nothing unfair about that. And, they are in no way making unfair use of the articles submitted to the network, more than are any other usenet site. It would also follow that even an explicit distribution statement (such as referred to at the beginning of this article) would not be legally binding, considering the fact that it would be impossible for every message in every newsgroup to be scanned by every usenet site in the world for possible distribution restrictions. That goes for GEnie and every other usenet site out there. A judge would likely suggest that if you do not want users of for-profit sites to have access to your message, that you should not submit it to the network at all. >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). He's right in theory. But thats not a good explanation. >Nobody's claiming damages for USENET distribution, which is intentional. >It's the GENIE distribution that's infringing. That is not at all the case. Usenet is a loose term. It refers to any site that recieves or submits usenet messages. GEnie wouldn't be excluded from that label if they carried news in some way. Even via gateway. >> 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. As does any restrictions on articles submitted to the network. They would not be binding. >> 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. This is not a normal medium. It is not reasonable to suggest that any distribution restrictions could ever apply in usenet. Even with specific copyright and distribution notices, due to the nature of the net and how it operates. There is no way that sites could "censor" the news on a global basis, and so it could not be enforced. If you can prove that GEnie (or any other usenet site or individual for that matter -- lets not pick on GEnie constantly) is making money specifically from your article(s), and not for providing their clients with desired services, (only one of which may be access to usenet messages), then you may have a case. You do have a copyright and do indeed own your works, but by submitting them to the net, you have basically made them public-domain; at least in a distribution sense. If an entity or company sells your works in verbatim, and in a form in which they were not originally intended to be distributed (global access through the many usenet sites, BBSs and other news-gatewaying services out there), and makes money specifically off of the sale, and without your consent or knowledge, then you may have a case. But still, it would be tough to prove misuse. >---Dan I am not an attorney (yet), but I am a law major and am fairly familiar with the subject of computer law and how it applies to copyright law. I also have a few friends who are practicing attorneys with whom I have had discussions with regarding this subject over the last few months, and the ideas I submit are our general consensus (in my own words of course). The truth is, that usenet (or any large scale information sharing networks or large scale BBSs) are as yet mostly untouched in as far as copyright law decisions go, and any statements regarding how the courts would look upon all this is yet to be seen, but I base much of my discussion on current law and on decisions that I am aware of that apply in some way. Until such time as a precident is made, the subject will undoubtedly continue to rage. Note: My site doesn't recieve misc.legal, so I will be unable to see any followups made there (which is why I followed up here and suggest others to do so as well since this group probably has a larger subscription base anyway). -- Darrin A. Hyrup // AMIGA Enthusiast rencon!esfenn!dah magik@sorinc.PacBell.COM \X/ & Software Developer pacbell!sorinc!magik ========================================================================== "Speak little and well, if you wish to be considered as possessing merit."