On Fri, May 04, 2001 at 08:51:51PM -0400, Brian Ristuccia wrote:
> On Fri, May 04, 2001 at 07:39:14PM -0500, Sam TH wrote:
> > On Fri, May 04, 2001 at 07:26:04PM -0400, Brian Ristuccia wrote:
> > > that gave him the letters. One can hardly argue that a latter sent to a
> > > public mailing list is unpublished.
> > >
> >
> > Actually, that isn't true. To quote from 17 USC 101:
> >
> > <quote>
> > "Publication" is the distribution of copies or phonorecords of a work
> > to the public by sale or other transfer of ownership, or by rental,
> > lease, or lending. The offering to distribute copies or phonorecords
> > to a group of persons for purposes of further distribution, public
> > performance, or public display, constitutes publication. A public
> > performance or display of a work does not of itself constitute
> > publication.
> >
> > [information about performance omitted]
> >
> > Note that transfer is required, and public preformance does not
> > qualify. Also note that the legislative history makes clear that
> > broadcast does not qualify as publication.
> >
>
> Television and Radio broadcasting differ significantly from Internet
> distribution mechanisms because broadcasting does not involve making copies
> at the direction of the copyright holder and then distributing them to
> subscribers.
But then, Tivo's remove television as a broadcast medium. The
technical details involved in sending a message to lots of people are
likely irrelevant from a legal perspective. If you watch TV on your
computer, and the broadcast is streamed to disk before being displayed
(yeah, I know that would be a bad idea) is that more like email or
more like TV?
> > I would disagree with it, but I think a serious case could be made
> > that emails send to mailing lists are unpublished, and merely
> > publically preformed. Unfortunately, I haven't been able to find any
> > court cases dealing with email.
> >
>
> When one sends a message to a mailing list, they set in action a chain of
> events whereby a copy is created and furnished to a mail server which in
> turn makes an (implicitly authorized) copy that is eventually furnished to
> the mailing list server. The mailing list server, which is also implicitly
> authorized by the original sender, engages in further distribution to the
> list recipients. One could argue that no implicit authorization exists, but
> such an argument is flawed. Why would one spool a message on a mail server
> if they did not want it delivered? Why would they send it to a mailing list
> if they did not want it to reach the subscribers?
Yes, these are all correct. But due to stupidities in copyright law,
that doesn't mean it's published. Movies only shown in theatres
aren't published either.
>
> According to 17 USC 101, the mere "offering to distribute copies or
> phonorecords to a group of persons for purposes of further distribution"
> constitutes publication. One who has posted to a mailing list or usenet
> discussion has clearly "distribute[d] copies ... to a group of persons [the
> mailing list operators] for purposes of further distribution [to the list
> subscribers]."
>
Yeah, but you leave out "sale or other transfer of ownership, or by rental,
lease, or lending". That might well make the difference.
I'm not saying that this is a good system, just that copyright law is
defintely gray on this point.
sam th --- sam@uchicago.edu --- http://www.abisource.com/~sam/
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