On Fri, May 04, 2001 at 10:13:32PM -0400, Brian Ristuccia wrote:
> On Fri, May 04, 2001 at 08:47:38PM -0500, Sam TH wrote:
> >
> > 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?
> >
>
> Yes, but copies made by a TiVo device are made at the direction of the TiVo
> user, not at the direction of the broadcaster.
You could easily write a streaming SMTP client. Sure, it's a bad
idea, but that never stopped copyright law before. The choice of
whether to record has everything to do with the reciever, and nothing
to do with the medium.
>
> > Yeah, but you leave out "sale or other transfer of ownership, or by rental,
> > lease, or lending". That might well make the difference.
> >
>
> You can't claim any physical property rights to the copy of your mail
> message that is on my hard disk as a result of you requesting its creation
> for me. While you may own the copyright, I own the copy.
You certainly own the copy. However, that doesn't neccessarily give
you license to the various exclusive rights I have to my email, as
enumerated in 17 USC 106. Public performance (eg, putting an archive on
the web) is one of those exclusive rights.
It's clear that you can keep any email you get, and can use them in
the ways enumrated as fair use in 17 USC 107. But that doesn't
neccessarily mean that I have granted you the right to publiclly
perform, publish, etc that work.
>
> > I'm not saying that this is a good system, just that copyright law is
> > defintely gray on this point.
> >
>
> If you give something away to someone, you have transferred physical
> property rights to that person. In the words of 17 USC 101, an "other
> transfer of ownership" has occured. If you're giving copies away to members
> of the general public, like the subscribers of this list, then you've
> published your work. 17 USC 101 seems clear on this point.
Physical property rights to email are unclear, to say the least.
What does "transfer of ownership" mean here?
And even if it is published, that doesn't mean you can publically
perform it, or copy it and redistribute it. My copy of the Harry
Potter books has certainly been published, but several people would be
unhappy if I started taking liberties with their exclusive rights to
it.
>
> Salinger v. Random House deals with citing unpublished private communication
> for profit and against the terms of a non-disclosure agreement. Neither an
> expectation of privacy nor a non-disclosure agreement exists on these public
> mailing lists.
But recall also that the defense was that the use fell under "fair
use". What Debian does with emails sent to the listserv certainly
does not qualify as "fair use". Also, the NDA applied only to some of
the letters, and Random House lost on all of them.
sam th --- sam@uchicago.edu --- http://www.abisource.com/~sam/
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