J C Lawrence <[EMAIL PROTECTED]> wrote:
> Tom Neff <[EMAIL PROTECTED]> wrote:
>> Copyright without control is a meaningless concept.
>
> Di[s]agreed. Copyright retains the concept of authorship.
Simply "retain[ing] the concept of authorship" is not enough, because we
already have a word for that: authorship! Copyright is a real legal
protection against use of published works without permission. It has a
specific scope of operation and a specific duration (70 years after the
author's death in most cases). There are many thousands of works (e.g.,
HUCKLEBERRY FINN, THE SECRET GARDEN, PARADISE LOST) whose authorship is
quite well known, but which are not protected by copyright. If a listowner
wants to talk about authorship, she or he should not casually substitute
the word "copyright" instead. They are different concepts!
>> One might argue that this is true for Internet postings in
>> general, but no more so than for a poem on a milk carton.
>
> Except that the copying expense for digital works is ~0, and the
> copying expense for milk carton poems is several orders of magnitude
> higher.
Actually, the per-unit cost of distributing a poem on a milk carton is
likely to be several orders of magnitude lower than the per-unit cost of
distributing a digital work like TOY STORY 2, but that is irrelevant. In
most cases when a work is published, the primary protection against
unauthorized use is not the cost of reproduction - since infringers are
usually prepared to recoup their costs, as when you pay for a bootleg of
BRIDGET JONES on a Canal Street sidewalk - but the potential cost of legal
damages when action is taken.
Copyright protection has never been based on the expectation that every use
of a work is trackable, nor has it been voided by the reality that once you
publish your essay in NEWSWEEK or your painting in a gallery catalog or
your song lyrics on the CD insert or your space opera on Usenet, you can't
be sure where it will go or who will see it. Instead, the protection has
been based on the pragmatic fact that it is hard to rip somebody off on a
scale that generates useful profit or acclaim for me, the "Ripper," without
you, the "Rippee," eventually noticing... at which point the law is waiting
on the Rippee's side.
This is why list managers are simply blowing hot air when they grandly
inform members "you own your own words" and so forth. Members do in fact
own their own words (or somebody does, depending on individual arrangements
you know nothing about) whether you like it or not, and whether you notify
them or not. There is no greater or lesser degree of control over their
words that you, the list manager, are in a meaningful position to grant or
deny them.
The exception would be if joining the list was made contingent (from day 1,
for all members, with no discrimination) on agreeing to something that says
"By joining, you agree to allow us, the managers of BEEKEEPING-L, to use
your words on any websites, books or other works we derive from the
list..." or language to that effect -- and you had better have that
agreement drawn up by an intellectual property lawyer, or it will be
*demolished* by an intellectual property lawyer when and if a serious
blow-up occurs.
If you don't like the idea of getting IP lawyers involved, or if you don't
think these fussy legal distinctions ought to matter, etc, etc, fine -- but
don't waste your members' time and your own constructing PSEUDO-legalese
that will mostly serve to confuse people until the day it's casually
shredded by opposing counsel, the judge or both. Just run an open forum
and trust in existing protections - it's likely to be more fun for all
involved.
> It is perhaps easier to define this in terms of expectations, as we
> are discussing digital property rights in a Napster era:
Mailing lists are almost twenty years old now, and the protections afford
to electronically distributed text are pretty well understood, without
recourse to cutting-edge Napster stuff. This is not a cutting edge issue.
It could all have been done, and I would surmise WAS done, in the era of
pamphlets and penny papers.
> You post to the list.
>
> You can have no reasonable expectation as to the distribution of
> your message ...
>
> You can have no reasonable expectation as to the lifetime of your
> message ...
>
> You can have no reasonable expectation as to subsequent
> presentations of your message ...
All equally true for any published work, and all irrelevant to copyright.
> You can and should have reasonable expectations as to claims of
> authorship, and that you can and will be identified with and
> against any such message.
I don't know what "identified AGAINST" means, but so long as your list
mechanism retains whatever notice of authorship the member originally
provided, you are covered. If someone else repackages or republishes
member messages without permission, it is probably an infringing use,
REGARDLESS of whether they painstakingly preserve authorship info (even the
original copyright notice), or whether they trash, chop, scramble or
falsify it.
Let's take a specific example. Suppose you run DRAKAN-L devoted to playing
that PC game they seem to ship with all kinds of video cards. You have
people posting strategy tips, team results, questions about the sound card
patch, etc, etc. Members can get a Digest, or individual messages, they
can get text or HTML as they prefer. There is a Web-based DRAKAN-L message
archive, either run by you or set up with your permission. There is a
mail-to-news gateway to the moderated newsgroup rec.games.pc.drakan. There
is a Drakan FAQ that is periodically posted to the mailing list, created by
you or in cooperation with someone who works with you, that's built in part
from answers found on DRAKAN-L. So far, so good! You'd be well advised to
explain this setup to joining members, but it's all pretty kosher.
Now suppose Joe Schmoe, whom you've never heard of, puts this book in the
store called WHUP-ASS SECRETS OF THE DRAKAN EXPERTS. You pick up a copy,
and lo and behold, Appendix A consists of your FAQ and Appendix B consists
of all the strategy threads from the first two years of DRAKAN-L.
Assuming anyone cares :), you sue for violation of your copyright on the
FAQ; and you sue for violation of the *compilation copyright* on DRAKAN-L,
which hopefully you were smart enough to assert in the headers, footers,
archives and/or welcome message. And, separately, individual members whose
words were used in that book without permission also sue.
This message is big enough, but there are other logical examples that could
be mentioned. The basic point is that authorship and distribution are what
they are, but copyright remains a specific concept with specific
protections, and listowners should focus on their bit of it rather than
worry about muddying the waters on other people's bits of it.
