On Fri, May 04, 2001 at 09:56:01PM -0500, Sam TH wrote: > > 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. > A streaming SMTP server would still make copies in memory during its operation. But this is not a valid argument anyway since it's widely known standard practice that SMTP servers not only can make copies, but that they must make copies during the course of their operation. (Not to mention returning 200 for a DATA command before you've safely written the message to nonvolatile storage probably violates the transaction model specified in rfc821.) > > > > > 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. > There's lots of types of letters for which further publication is allowed either by an implicit grant of permission or by fair use. If it was common and well known practice for the messages sent to my address through an implicit grant of permission. Examples of this former case include letters to the editor of a newspaper, and email messages to publicly archived mailing lists. Examples of the latter case include threatening letters, like the ones the MPAA, RIAA, etc. send folks. > 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 didn't argue that receiving mail gave the recipient unlimited rights, only that posting to a public mailing list constituted publication for the purposes of 17 USC 101, thus making Salinger v. Random House not pertinant here. Salinger v. Random House differs from other infringement cases around publication of letters because the letters were private, unpublished correspondence. What Debian does with list postings is not at all like what Hamilton did with Salinger's letters. Debian is acting on the command of a poster by distributing messages mailed to Debian to the subscribers of the list and placing it in the archive(s) as implicitly requested by the poster. Hamilton was copying from an unpublished letter not addressed to him in any way and without any sort of implicit permission. Hamilton's right to copy was reduced by two factors: no implicit permission, and inability to build strong fair use defense. Debian's right to copy list postings for the purposes of distribution to subscribers and archival is weakened by neither of these factors. > > > > > 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? If you give me a copy, or order one made for me, I possess that copy. The ownership of that copy has transferred from you, or your agent (which might be me, acting on your behalf at your request), to me. > > 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. > Scholastic would have no right to cry infringement over the multitude of copies made in the process of normal delivery if they emailed me a copy of the Harry Potter books. Neither would they have a claim against the archives if they posted it to a public archived mailing list that they knew was both public and archived. > > > > 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. > We don't need to invoke a fair use defense because no infringement occured. Placing the message into the archive(s) is an action implicitly authorized by the copyright holder when they post their message to an archived public list. -- Brian Ristuccia brian@ristuccia.com bristucc@cs.uml.edu
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