Can Copyright Apply to SPAM? 159
Richard W.M. Jones asks: "The Great Spam
Archive received a legal threat today. A
'lawyer' claims that some spam displayed at the
site is copyright, and must be removed.
I'm claiming it's fair use for me to display
an unwanted email sent to thousands (probably millions)
of people at random. Is this fair use, or do they
really have a case?"
Why wouldn't it? (Score:2, Interesting)
On another note, this guy has clearly never heard of the philosophy: "No publicity is bad publicity."
Re:Why wouldn't it? (Score:4, Interesting)
Re:Why wouldn't it? (Score:3, Insightful)
If you receive a copy of the latest John Grisham novel in the mail unsolicited, you get to keep it - but you don't get to set up your own printing press to make copies. You own one copy, not the copyright.
The same logic applies here. In the US, for better or for worse, everything that is "fixed in a tangible medium of expression" is automatically copyrighted. That probably includes spam, despite the fact that this state of affairs doesn't advance the progress of "Science and the useful Arts." (Maybe spam is a useless art?)
The whole concept of mass-distribution copyright is a very strange one. When I post something to Usenet, am I giving implicit permission to Google to archive my post and serve it up years later? What about posting to a forum like Slashdot, which claims that I still own my comment, but nonetheless republishes it without any agreement from me?
Re:Why wouldn't it? (Score:2)
Including phone books?
Re:Why Should it? (Score:2)
Re:Why wouldn't it? (Score:2, Insightful)
They're right (Score:5, Insightful)
Just because something is unsolicited doesn't mean the owner has abandoned their copyright and the work has entered the public domain.
There is plenty of precedent - billboards and posters and broadcast advertisments (radio and television) are all unsolicited yet few would deny that they are still copyrighted by their owners.
Re:They're right (Score:3, Interesting)
No analogy is great for this situation, but say you sent a letter to the address marked for the letters page of your local newspaper. The editor surely has the right to print anything legal that is sent to that address since that is the reason the address exists.
Similarly, if a spammer sends a spam to someone hosting a spam prevention site that would seem to be to be almost a
I'm not sure the analogy with broadcast media holds, because email is not really designed for broadcasting (even if the spammer is attempting to treat it like it is.)
Re:They're right (Score:2)
And what if I randomly made up an address and posted something to it - and it just happened to be the address of that magazine? I've never seen the fine print in this case.
An analogy to your analogy would be putting something on my website (www.example.com) saying that everything sent to addresses @example.com will be published however I want it to. Actually, my example is better, because it's reasonable to expect that information about example.com can be found at www.example.com, while mailing a P.O. Box is completely random, and the lookup of the owner is harder.
Nice try though - the law doesn't require me to have read that magazine to have the address.
No, they're scum (Score:2)
Hello? (Score:5, Funny)
Well, I don't know, MAYBE YOU SHOULD ASK A LAWYER. Sheesh, when will people learn?
www.eff.org perhaps? (Score:3, Interesting)
Aren't the people from the Electronic Freedom Foundation the ones to ask? They should love this kind of stuff.
PLEASE PLEASE ignore advice that the email you got is probably not from a real lawyer. They are probably right but it is only a matter of time before you do, seek advice NOW. The disclaimer you got up at the moment is just plain wrong. If you are going to fight a million dollar industry you need legal backing.
Fair use of copyrighted material is a hotbed. Anyone remember that fuss with publishing documents by the scientology church? In email it could really get weird. If I forward a mail to abuse@isp.com am I infringing the copyright?
Anyway I am serious about getting help. You are taking on people who happily send porn to childeren, make claims that would have them in court if they printed them on paper and ride on the back of everyone else to make their profits.
Re:Hello? (Score:2)
Proof of Identity of original author? (Score:4, Interesting)
Re:Proof of Identity of original author? (Score:3, Insightful)
That's not true. Claims of infringement can be made by the current copyright holder, whether or not that institution or person is the original author of the work. In this case, the spam is declared "Copyright 1997, Email Connection Inc." (It's the first line in the message.) This indicates that the message was written as a work-for-hire, and that the corporation is the owner of the copyright. So any representative of that corporation can claim infringement: an employee, a retained worker like a lawyer, or even a third party who wishes to place the claim on behalf of the corporation.
Re:Proof of Identity of original author? (Score:2)
Will a spammer be so eager to reveal his/her identity and contact details? Perhaps not.
Re:Proof of Identity of original author? (Score:2)
Most likely in this case 'lawyer' == spammer == copyright holder.
Re:Proof of Identity of original author? (Score:3, Insightful)
Of course it can apply to spam (Score:2)
If you write a program, license it under the GPL, and millions of random people download it, do you forfeit your copyright? No.
If you write an email that contains an original work, however shitty that work might be, you own the copyright on it, regardless of how it's distributed.
IANAL, but I do have some common sense.
Yes but -- much spam is illegal (Score:2)
But checking each message against the law would be a pain to administer and would exclude many of your samples. Better to address the fair use angle, which is not a forfeiture of copyright but an exception to it.
Re:Yes but -- much spam is illegal (Score:2)
What precedent would you cite to back that up? The work itself isn't in violation of any laws; the delivery of it is. Just because one party violated the law in delivering the work to its recipients, that doesn't mean that another party-- who may or may not be the same as the first party-- should lose their copyright on the work.
Heck, even libel laws don't touch copyright. A libelous work is, in and of itself, illegal, but the author still gets to hold on to his copyright to it.
Better to address the fair use angle, which is not a forfeiture of copyright but an exception to it.
As I wrote elsewhere, this doesn't sound like fair use to me. One of the key principles of fair use is that it should do no harm to the value of the work to the author. This use violates that principle; simply having one's work included in this archive reduces the value of that work.
Re:Yes but -- much spam is illegal (Score:2)
As I explain elsewhere, if the message is an intimate part of a criminal violation (and I don't mean using a dictionary to beat someone to death) then I would not be surprised to see a public policy exception of copyright, or most probably fair use It's cutting things fine, and I'm curious what a court would say. But it's hard to discuss spam without presenting the offending message, and I think it's only fair to present it in full. Copyright here is being used not to protect profitability but to suppress public discussion.
Re:Yes but -- much spam is illegal (Score:5, Insightful)
Ah. You may have just hit the nail right on the head. That's an excellent way of looking at the question. Public comment is critical to developing policy on the question of commercial email, and comment only in the abstract is not useful. Good one.
I'd imagine that a judge would just latch on to the noncommercial and critical aspects of the archive, and stamp the whole thing fair use, rather than trying to break new ground on yet another copyright exemption.
Good argument.
Re:Yes but -- much spam is illegal (Score:2)
Throw in the debatable value of the spam itself, and I don't think the spammer has a chance. The only sticky point is showing the neccessity of quoting the spam in full, and the standard defamation charges that may be brought. I bet there's a nice prepackaged discussion of this out there somewhere, I just haven't brought it up.
What a waste of time this discussion. And spammers claim spam don't waste others' time, money, sanity?
Oh duh -- thank you for your compliment.
Re:Yes but -- much spam is illegal (Score:2)
No, I don't buy it. Not being allowed to reproduce the work in an archive doesn't limit speech about the work in any meaningful way. It's too much of a reach, and unnecessary in light of the other arguments. Better to just avoid the issue of speech entirely, and rule entirely within the grounds of 107.
It's a wastebasket for avoiding a lot of these case-by-case public policy considerations.
See, that's why I don't buy it. The intent of 107 is that questions of fair use should be decided on a case-by-case basis. The first amendment and Title 17 really don't overlap very much in my mind. They're different issues.
Throw in the debatable value of the spam itself, and I don't think the spammer has a chance.
Judging the worth of a copyright claim based on the perceived value of the work is a dangerous precedent. The copyright law covers all works, no matter how trivial they may seem. Judging which works are fit for protection and which aren't runs contrary to the whole idea of the law, particularly since the '78 amendments.
Re:Yes but -- much spam is illegal (Score:2)
Oh, I disagree. It is critically important. For example, it would be impossible to do a parody without reproducing some, not necessarily all, of the work. But statutory fair use apparently makes it unnecessary to reach free speech Q's. As I mention below, I think it's nonetheless important to be mindful of the influence of free speech doctrine.
Value of the work -- what damages could the spammer seriously claim? This judgment affects the decision whether to take the threat seriously, whether to roll the dice telling them to go to hell, etc. Strategic stuff.
Doctrinal relationship of 1st A. and fair use -- I supposed that they were interrelated, and others [ttu.edu] have argued the same. Fair use is not in the Copyright Clause, it was read into it, originally by the judiciary. Congress later wrote it into the statute. I think fair use is clearly informed by 1st A. values, but of course the two are not interchangeable.
Here's more [bitlaw.com] and more [gigalaw.com] (note ditto.com cite). I haven't vetted these docs; use at your own risk (as if my approval would guarantee anything!). This area of law, with regard to the Internet, is not fully formed. I'm reminded of the deep-linking Q, too.
However, this is all far too abstract. A trial judge is going to want cites to statutes and precedent, not dreamy academic stuff. It's just useful to consider the underlying values to keep your arguments focused. Now that I've belatedly read the actual "C&D letter" I realize the writer is full of crap -- good enough for a dismissal IMHO.
Re:Yes but -- much spam is illegal (Score:2)
Writing Spam is protected by the First Amendment.
Don't Listen To Slashdot!! (Score:5, Informative)
1. Consult Copyright.gov [copyright.gov]
a. Notably, see Circular 21 [loc.gov] on page 12 they cover Reproduction by Libraries and Archives.
b. Also see FL 102 [copyright.gov] on Fair Use.
2. Consult a Lawyer. After reading that, and perhaps researching the issue some more, if you feel that you are still within your fair use rights and you wish to stand by your ethics and values that make you want to keep the spam on the website, Then you really should consider contacting a lawyer. You could try and just ignore the email. I would request that they send you an official letter (via registered mail) stating the legal reasons for the threat.
Also, Note: Contrary to what some comments on this site indicate, the spammer does not have to include a copyright notice on the email. This is especially true if you consider the act of emailing to be a form of publishing the message. See http://www.copyright.gov/circs/circ1.html#hsc
Why didn't I think of this? (Score:3, Interesting)
I assume you rec'd a C&D letter, or was the contact more informal (you seem unpersauded the person really was a lawyer)? Details? Did they cite legal authority?
Check out the materials at chillingeffects.org, it should address your basic concerns but may not answer your specific question.
Personally, FWIW, I think you're OK, both under fair use (you are basically an online library, though it's not quite that simple) and the fact they forced you to take it (waiver?), but before you look at the merits the realistic issue is whether this could even possibly go to court. Even if you will win, that's where $$$ comes in. Often they are bluffing: litigation costs money, but a quick cheap threat often works, so why not take a stab at it?
I'm sure I've seen this question addressed online -- look around.
This is not legal advice, but it doesn't sound like you yet need it. (That wasn't legal advice, either.
Re:Why didn't I think of this? (Score:2)
This is beautifully clever -- enforcing a copyright on a message no one wants, because if you don't it might get harder to force the same message on other people.
Just sounds like they're adopting the tactics of the Church of Scientology. Still, if you're going to abuse the legal system you might as well learn from the best.
Re:Why didn't I think of this? (Score:2)
But sure, in the sense of trying to squelch criticism [skeptic.com], same idea.
Come to think of it, the Church proper is another example of "Why didn't I think of this?"
Magazines... (Score:2, Insightful)
Here's a thought...what about putting up a page with a list of E-Mail addresses stating that "By sending E-Mail to this address/addresses you are giving up any and all claims to copyright..."
Make it easy to add your E-Mail address to the database and soon the spammers will either have to remove all of those addresses from their spam lists...more cost to them, and ultimately accomplishes the desired effect (no more spam)...or they will have to give up on the whole copyright thing...
The reason I mention this is that magazines display this kind of notice for their mailing addresses ("send your pictures to us and we'll publish them"), and I'm sure they have alot of experience dealing with such issues.
Then again, I thought that copyright law required you to promemently display a copyright notice in the origonal document...
</IANAL>
Re:Magazines... (Score:2)
Wouldn't work. You can't hold somebody to a term or condition implicitly; they have to take some explicit action in fulfillment of the term or condition in order for it to be valid. Otherwise, I could walk around with a tee shirt on that said "By talking to me you agree to pay me $100" on it and make a fortune.
That's why software licenses always include some explicit action: sometimes the software media is enclosed in an envelope which reads, "By breaking this seal you agree to...." Sometimes the software's installer includes a screen that says, "By clicking this button you agree to...."
Simply putting a sign on your mailbox that says "By sending me a letter you agree to..." won't cut it.
Re:Magazines... (Score:3, Funny)
Re:Magazines... (Score:2)
That's okay. I'm not.
Re:Magazines... (Score:3, Insightful)
Wrong. Simply sending a letter doesn't count because you aren't doing anything different from or in addition to what you would do without the agreement.
This disclaimer has been around for as long as I can remember,
Your own words trip up your argument here. The fact that institutions like newspapers have had this "letter to the editor" policy simply establishes that letters to institutions are different from letters to individual persons. If I sent a letter to Bob the copyboy at The Times, I'd be mightily pissed if that letter ended up in tomorrow's edition. When sending correspondence to an individual, there's a reasonable expectation that that correspondence won't be subject to any unusual terms or conditions.
It would never work.
Re:Magazines... (Score:2)
They have been winning their cases in court when they bill telemarketers and later sue to collect the outstanding bills.
So, as much as you are saying it isn't possible, courts are recognizing the rights of people to do exactly what you say is not legal.
But then again, this is Slashdot, and I've found before than when someone posts info on what the courts are deciding and the verdicts being rendered, there are always a handfull of
If I were you... (Score:2)
Consider setting up a honeypot (Score:5, Interesting)
For every email you receive auto-reply with a notice that by sending to that email address the spammer grants publication rights to the Great Spam Archive. (you may wish to be "fair" and give the spammer a chance to opt-out of this)
This should help resolve issues like this.
Re:Consider setting up a honeypot (Score:2)
You insensitive deviant, the poor spammers don't have working reply to addresses, that is unfair to them. I LOVE IT. Perhaps they will have to start having real addresses!!!
Re:Consider setting up a honeypot (Score:4, Insightful)
For that matter, it might be worthwhile to add a rider to the notice something along the (properly translated to legalese) line of:
"Also, by sending to this address, the sender agrees to pay an archiving fee of $500 per item."
If they claim copyright, then you know who to claim the archiving fee from
Mod parent up (Score:2)
Even easier... (Score:2, Interesting)
Instead, do this:
I'm going to assume that you are in control of your domain and you know how to work with your email system. Create an alias that says:
any-email-sent-to-this-address-becomes-property-of -the-recipient@yourdomain.com
two questions, two answers (Score:5, Informative)
The first question is, "Does copyright apply to spam?" The answer, of course, is yes. Anybody who writes anything automatically gets a copyright on that thing. (This is true in the biggest part of the world; the laws of your jurisdiction may vary. But since the question was submitted in English, it's fair to assume that we're talking about U.S. or similar copyright law here.) That applies to books, magazine articles, letters, pamphlets, Slashdot postings, grocery lists, and, yes, spam.
The second question is, "Is the publication of this work on a web site a fair use?" That's harder to answer. One small part of the answer, though, is easy: the fact that the author of the spam in question sent it to (possibly) millions of people indiscriminately does not give anyone else the right to republish the spam without the author's permission. You can't implicitly put a work into the public domain, even if you gave everybody in the world a copy. So the simple fact that this is bulk email doesn't invalidate the author's claim of copyright. But if your use is fair, you don't need the author's permission. The question, then, is whether publishing the spam in this way and on this site is a fair use.
The law (17 U.S.C. 107) defines fair use. It says, in relevant part, "[T]he fair use of a copyrighted work [...] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." So the purpose of the use is relevant to the question of whether the use is fair.
The maintainer of the spam archive in question says, "I'm making this archive available in the hope that it will draw attention to the enormous problem that spam poses to ordinary Internet users, and to allow people to analyse this junk in the hope that one day it can be prevented by both technical and legal means." So the maintainer's purpose appears to be primarily political: he wants to stop spam, and he uses his archive as a tool for doing so. One could also say that the archive exists as an educational site, to provide information on the various techniques used by spammers in constructing their messages. One could also say that the purpose of the site is criticism: criticism of the spammers and their methods. So the purpose of the archive seems to be, at least generally, in line with the purposes outlined in the statute.
That test passed, we have to look at the rest of the statute, which names criteria to be used for judging whether a specific use is fair. The law says: The purpose of this use is clearly noncommercial; the maintainer of the site does not make any commercial use of the archive at all.
The nature of the work is an advertisement; as such, it's difficult to imagine how the value of the work could be harmed by republishing it. Read on for more about this, though.
The archive reproduces the entire spam, including Internet message headers, which is a strike against the use being fair. The intent of the law is to allow portions of copyrighted works to be used without restriction for purposes like comment and education; without this clause, nobody would ever be able to quote anybody else without their permission. Reproducing the entire work is beyond the intent of this law. However, the fact that the works are reproduced in full is a consequence of the nature of the archive. So this criterion is a grey issue.
Finally, we have the kicker: "the effect of the use upon the potential market for or value of the copyrighted work." As an advertisement, the value of the work is directly proportional to its credibility. If you damage the credibility of the advertisement, you reduce its effectiveness, which reduces its value to the author. Publishing this advertisement in an archive of spam clearly associates-- even equates-- this work with ads for such products as "herbal Viagra," penis enlargement methods, and pornography, as well as out-and-out fraud. This association-- accurate or otherwise-- is obviously damaging to the value of the advertisement to the author.
Note also that we're not concerned here with absolute credibility. Even if the message in question is obviously not credible to a reasonable person, it still has some baseline value to the author. We can only be concerned with whether this use reduces the value, irrespective of what that initial value might have been.
If I were deciding this question, I'd have to rule that this use is not fair, because it significantly reduces the value of the work to the author. Therefore it is not permitted for this work to be published without the permission of the author, and the maintainer of the archive should remove the message in question immediately.
One more note: the maintainer of the archive says, on the front page, "These messages [are] in the public domain. You may use them for whatever reasons you wish." This is absolutely not true. Nothing is in the public domain unless and until its copyright expires or it is specifically placed there by the author or copyright holder. The maintainer of the archive needs to be aware of this. I'm not saying he should shut his archive down; chances are many of the messages contained in it will never be challenged on copyright grounds. But if the maintainer thinks that he's free and clear to do whatever he wants with these messages, he's setting himself up for a harsh and expensive firsthand lesson on copyright law.
Fair use (Score:3, Interesting)
Besides, the librarian here is expressly posting the spam as an exercise of criticism, a free speech interest that fair use is meant to address. It's OK to use a work to make the author look bad. And here, it really is necessary for the librarian to reproduce the spam in whole. Excerpts would likely not convey enough information for others to identify which spam is being discussed. Indeed, to publish an excerpt might render the criticism of the entire spam unfair but taking that portion out of context.
I agree that copyright remains intact, and the librarian can't declare it public domain. Indeed it would be better to remind the viewer that the copyright status is unknown. The possible exception I wonder about is where the claim of copyright violates public policy, as where the work is used as part of a crime. For example, it's hard to imagine a kidnapper suing the newspaper for publishing his ransom note, written in iambic pentameter.
These are just some thoughts; again, I suspect this problem has been explored before. I'm not attempting to practice law here.
Re:Fair use (Score:3, Interesting)
It has, yes, but that's only because the law has thus far been applied to artistic works. Works of advertising derive their value differently, and that must be taken into account. In this case, the association of this advertising work with the other works in the archive presents a strong case for a value impact to the author, even independent of a reasonable claim of defamation.
If the maintainer described his archive as simply being a collection of non-private email correspondence that he has received, and put the messages up without expressing any value judgment about them at all, this point might go the other way. But as it is, the site makes it obvious that the maintainer views these works as worthless junk, and uses the archive as a tool to encourage technological and legal redress.
And here, it really is necessary for the librarian to reproduce the spam in whole.
Yes, I agree, which is why I said that issue comes down to a grey point. The fact that the spam is reproduced in full doesn't necessarily argue either for or against the use being fair in this case; it's a natural consequence of the archiving process.
I'm not attempting to practice law here.
Nor should you; Slashdotters are notoriously bad about paying their bills.
Re:Fair use (Score:3, Insightful)
but it seems there should be a distinction drawn between these:
1) Profiting from a work as if it were my own, thus diminishing its value by making it more common and probably undercutting the price of the original.
2) Including a work as part of a criticism of that person's activities. If I was protesting someone's painting of a religious figure, would I have the right to show a photo of that painting?
Re:Fair use (Score:2)
In Campbell v. Acuff-Rose [cornell.edu], the Supreme Court applied fair use to 2 Live Crew's parody of "Oh, Pretty Woman!" Among other things, the Court said that even a parody for profit does not necessarily violate copyright. (Another debate is: does the parody have to be funny?)
Re:Fair use (Score:3, Interesting)
Usually that point is oriented more towards whether the defendant's "fair use" undermines demand for the original in the marketplace.
It has, yes, but that's only because the law has thus far been applied to artistic works.
Perhaps that is the downfall of the argument, though. Only artistic works can be copyrighted in the first place. The fair use clause is a necessary result of the copyright clause of the constitution, and thus should be interpreted in that light. Now it gets really tricky :).
Re:Fair use (Score:2)
There is absolutely no precedent for that sort of interpretation. The problems start with "How do you decide what's 'artistic' and what's not?" and get worse from there.
Re:Fair use (Score:2)
Only artistic works can be copyrighted in the first place.
There is absolutely no precedent for that sort of interpretation.
Read any Supreme Court ruling on the Copyright Clause. Or just read the Copyright Clause. I'm not going to bother quoting it because if you don't at least have it memorized you have no right making such a bold statement as you just made.
The problems start with "How do you decide what's 'artistic' and what's not?"
Congress has decided it already: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.
Is spam a literary work? Somewhat, but its protection under copyright only extends to the parts which are literary, and literary must be interpreted in light of the Copyright Clause, which means it must be artistic.
Re:Fair use (Score:2)
What "Copyright Clause?" Are you talking about Title 17? It says, "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." The key phrase there is "original works of authorship." Any original work in any medium of expression-- notwithstanding 17 U.S.C. 102(b) which describes those types of intellectual property that are covered by patents rather than ideas.
Nowhere in the statutes does it say anything about copyright extending only to "artistic" works. There's nothing artistic about this post; it's covered by copyright anyway.
Congress has decided it already: (list from 17 U.S.C. 102)
Those are examples of works of authorship. It's not an exclusive list. For example, the list does not include computer source code-- unless you twist the definition of "literary" to mean "anything written," which makes it pretty useless-- and yet computer source code is most definitely covered by copyright.
Is spam a literary work? Somewhat, but its protection under copyright only extends to the parts which are literary, and literary must be interpreted in light of the Copyright Clause, which means it must be artistic.
Your interpretation of the law is completely bogus. At no time has it been considered that copyright should only cover works that are "artistic," specifically because there is no objective definition of that word. Is the manual that came with my VCR "artistic?" Not by any meaningful definition. But it's covered by copyright anyway.
You should just drop this "only artistic works can be copyrighted" thing now. The truth is quite different: every original work is automatically copyrighted, no matter what its relative merits, artistic or otherwise. That includes the spam in question.
Re:Fair use (Score:2)
What "Copyright Clause?"
You're showing your ignorance of copyright law. The Copyright Clause is in the Constitution, Article I [cornell.edu], Section 8: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
Those are examples of works of authorship. It's not an exclusive list.
Are you trolling me? It most certainly is an exclusive list.
For example, the list does not include computer source code-- unless you twist the definition of "literary" to mean "anything written," which makes it pretty useless-- and yet computer source code is most definitely covered by copyright.
The third circuit court of appeals certainly disagrees with you. In Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc. they state that "computer programs are classified as literary works for the purposes of copyright" Yes, it's a stupid definition, computer programs shouldn't be copyrightable at all, but it's the law.
You should just drop this "only artistic works can be copyrighted" thing now.
You should learn a little bit about the Constitution before arguing that I should ignore it.
Re:Fair use (Score:2)
Okay, we're done talking now. Normally you make sense in your posts, but in this particular case, you're way out of your depth. It's clear that you're arguing from a flawed position-- computer programs shouldn't be copyrightable??-- so I respectfully ask that we just agree to disagree on this point. As long as you start with the assumption that copyright only covers certain types of works-- which is contrary to what the law says; refer to the quoted passage I provided up-thread-- then we'll never see eye-to-eye.
Re:Fair use (Score:2)
It's clear that you're arguing from a flawed position-- computer programs shouldn't be copyrightable??-- so I respectfully ask that we just agree to disagree on this point.
On that particular point, certainly. But I should make it clear that I am completely aware that this is only my opinion. Just like many people disagree with the Supreme Court over Roe v. Wade, I have a right to disagree over whether or not computer programs are artistic. Further, my statement that "computer programs shouldn't be copyrightable at all" was largely an extension of my opinion that "copyright shouldn't exist."
I'm not, however, out of my depth. If you haven't heard of the Copyright Clause, then you are the one discussing something that's over your head.
I stand by my assertion that only artistic works (literally "useful arts") are copyrightable, and that this is a fact with which every single Supreme Court justice would agree.
Re:two questions, two answers (Score:2)
Very well thought out. I'd probably have to agree with you. But I'd still say there is an implied license which is granted. Now the problem is whether or not that implied license can be taken away. And that's where it becomes extremely difficult, because the implied permission to allow the spammer to connect to your computer is tied to the implied permission to publish the spam. Take away the permission to publish, and I'll take away the permission to use my email server.
Perhaps that's a solution. Agree to stop publishing the spam in return for an injunction against sending email to the recipient. Is there such a thing as a class action injunction?
Re:two questions, two answers (Score:2)
Of course you're free to make that argument, this being a free country and all, but I'm not aware of any legal precedent to back it up. On the contrary, there's a strong precedent the other way around. TV shows are broadcast through the air, indiscriminately, to everybody for free. Whether you want to watch the shows or not, your TV antenna is receiving them right now. These shows are copyrighted.
What's more: the commercials aired along with these shows are copyrighted.
Nobody talks about "implied permission to use my TV antenna." TV just isn't thought of in those terms. I'm not sure it's useful to think of email in those terms, either.
Re:two questions, two answers (Score:2)
Remember that the Internet is merely a medium, from a legal point of view. Forget everything you know about computers-- lord knows I'm trying to-- and think of email, Slashdot, Usenet, et cetera as media. As I sit here, composing this post, I am creating a work. That work is protected by copyright. When I click the "Submit" button-- 'cause, you know, the "Preview" button is for wimps-- I'll use Slashdot as a broadcast medium to transmit my work to anybody who wants to sign in and read it. Just as if I were, instead, reading these words over the radio or on TV, the fact that I'm broadcasting my work doesn't in any way dilute my copyright on it, nor does it grant anybody any exceptional rights.
Technically speaking, the various modes of communication over the Internet work differently from the way TV or radio, or even traditional paper-based publishing, works. But the technical details aren't important; what's important is that the Internet (or more accurately the various types of software that run on it) behaves like a broadcast medium. That's why it should be thought of that way in situations like this one.
McLuhan was full of shit, basically. The medium is not the message, at least from the perspective of copyright.
Re:two questions, two answers (Score:2)
Sounds like you're confusing Slashdot the computer software-- which is just a database with some I/O software running on a computer somewhere-- with Slashdot the organization-- which is composed of people. Slashdot-the-organization has no right to publish my comments; if they do so without permission, they'll be in trouble. Rather, I publish my own comments using Slashdot-the-computer-software as the medium of transmission.
Basically what you're saying is, "What gives the printing press the right to reproduce your book? I'd argue that it's an implied license." See the difference?
Implicit right to redistribute? (Score:3, Interesting)
This issue has come up with web pages in the past in relation to services that cache pages like Google.
While I don't think that it has been tested in court there is an implicit right to save copy and redistribute all or parts of the work because of the architecture of The Internet. SMTP servers, POP servers, IMAP servers, even TCP and IP all make copies of some or all of the data and then send it on to another computer, often not the destination computer.
Also email addresses don't always represent a one to one relation ship, some addresses may send an email to multiple people, such as mailing lists. Additionally mailing lists often keep archives of messages sent to that list, further muddying the waters.
I would think unless that can prove that they knew who every one they sent the message to was then they can't say they haven't implicitly given up some of their rights when the released the message to The Internet.
Re:Implicit right to redistribute? (Score:3, Informative)
Those copies are what Title 17 refers to as "ephemeral recordings." It's analogous to a TV station's making a temporary recording of a network feed and then broadcasting it later. Copyright law (specifically, 17 U.S.C. 112) grants a blanket exception (with exceptions of its own, of course) for ephemeral recordings.
I would think unless that can prove that they knew who every one they sent the message to was then they can't say they haven't implicitly given up some of their rights when the released the message to The Internet.
Fortunately, copyright law doesn't agree with you. A work doesn't have to be communicated privately for it to be protected. The TV shows you watch at night are protected by copyright, even though they're broadcast indiscriminately to millions of households. This is the same idea. The work is distributed widely, but the copyright on it remains intact.
well tickle me pink if i didn't say so... (Score:2, Insightful)
f64 : i have a lawyer and i'm not afraid of using it!
You need the handy dandy "Fair Use" converter. (Score:4, Funny)
The algorithm is open source, and it works like this:
1. Split the entire spam into paragraphs.
2. Display 2 paragraphs.
3. Credit the original author appropriately.
4. Add one sentence of critique, preferably in italics. And call them cocksuckers as many times as you can without becoming tedious.
5. Repeat steps 2 - 5 until you run out of paragraphs.
Cheers!
My take... (Score:2)
Of course, "IANAL", and you should get one ASAP if you are really worried.
Re:My take... (Score:2)
Most everything on TV is copyrighted. Even though it's just been transmitted to millions of strangers, there are limits on what you can do with a copy of it.
Re:Interesting point. (Score:2)
Oh bullshit! (Score:5, Interesting)
This person is not a lawyer. The lack of a name -- for either lawyer or client -- and staggering number of typographical errors and lack of even verb agreement (owner/have -- plus it's)
Write back to these people if you must, and ask if they'd be interesting in buying your new line of nitric acid suppositories. Maybe let AOL know the account is being used to send anonymous harassing emails by someone impersonating a lawyer.
****
From: Legalservicesdp@aol.com
Date: Wed, 27 Nov 2002 14:02:52 EST
Subject: Copyright Infringement
To: Rich
Dear Mr. Rich:
You have stored on your web site, and published without permission, the
enclosed copyright protected documents, at
http://www.annexia.org/spam/messages/Junk0/037.
The owner of these documents have requested that you remove them
immediately, as it's publication is Copyright Infringement Please respond
within 10 days to inform us you have removed the documents.
Sincerely,
Legal Services
crime and punishment (Score:2)
What I would do ... (Score:5, Informative)
First, I would write back to "Legalservicesdp@aol.com" and call their bluff. Tell them that you will not even CONSIDER honoring their request until you receive their request by Certified Mail on firm letterhead.
Second, I would forward the e-mail to abuse@aol.com on the basis that whoever this is seems to be trying to represent themselves as a service provided by AOL to their members. If that's really what is going on, it could cost "Legalservicesdp" their AOL account.
Third, IF you receive a certified letter from someone that you can v</Disclaimer>erifiy is really a lawyer, I'd write back to them asserting that your use of the spam on your website constitutes public comment of an educational nature on the content of the document in question and is, therefore, protected under the doctrine of "fair use."
Fourth, if they sue for copyright infringement, have your lawyer move for sanctions under federal rule of civil procedure 11, because it is my opinion that this is indeed fair use. It is roughly the equivalent of making a single copy of the "work" and posting it in a public place. After you bring to their attention your intention to defend on that basis I think any lawsuit they might file would be easily deemed frivolous.
<Disclaimer> I am not currently engaged in the practice of law and my license is not currently active. I do not claim any special expertise in the area of intellectual property law.
Accept any advice you receive from me or from anyone else claiming to be a lawyer in this forum at your own risk. The only way to be sure you are receiving high-quality legal advice is to consult with an attorney in active practice in the jurisdiction where you reside.</Disclaimer>
Damn gatekeepers of justice (Score:4, Insightful)
Think back to your law school days. In the US, anyone can act as their own lawyer - our courts have repeated rejected the "gatekeeper" role for lawyers that other countries have adopted.
Only a fool would pursue a non-trivial matter without a competent lawyer helping them, if not actually representing them (which is all that membership in the bar really gives you - the right to represent others before any court in that bar), but they still have that right.
Meanwhile, I agree 100% that any "legal" notice that isn't signed with a real name is meaningless. Nobody has the right to make demands by fiat - even if you're willing to concede that somebody is entitled to make a claim (which is far from certain in this case), you have the right if not the obligation to ensure that this person is competent to make this claim.
just look at the email (Score:4, Informative)
A few (minor) points:
1. The person is obviously prentending to be from AOL (the correct email is AOLLegal)
2. He doesn't include his name or company
3. Bad grammer, lawyers take this VERY seriously!
4. The fact that is was sent from an AOL account
My $0.02: This one is safe to ignore until you get real legal documents.
Similar to postal? (Score:2)
Granted email normally is not a public medium, but email sent to millions at random with no descresion as to where it is sent is pretty close to "the public"
I dont know if that would fly but its worth a shot.
If it doesnt, then I would counter that my email address is a copyrighted work and as long as they did not give the spammer permission to obtain the copy (in their email list) they are just as guilty as you are.
I do know if a person sends me an email directly, and they do not say specifically in the email that it is confidential, I am allowed to post it IE on my website.
By sending it to me I have been given an implied licence to use that email myself.
The problem here is the spam collecting website is most likely not the one the email was sent to, so they cant use that reasoning.
One could also say they told the spammers in a reply to not send any further emails or you will publish them publically, and by doing so they grant you permission to do so.
If the spammer has forged from headers, its not your problem the email never made it there.
Well, technically i guess it is, but id hope a judge would see the spammer as commiting fraud instead of trying to pin it on you.
In the end you can always go over and beat the spammers skull in with a crowbar
(Hey, what do you expect from slashdot legal advice}
Re:Similar to postal? (Score:2)
Posting email is very controversial, and I wouldn't count on getting away with it beyond fair use of the text.
Explicitly a Research Tool (Score:2, Insightful)
My understanding is that the Archive is explicitly provided as a nonprofit research tool for testing the effectiveness of certain computer algorithms.
Perhaps the interface could be redesigned to favor the provision of aggregate data (an mbox archive of spam fitting a profile or search, for example) and make it less convenient to identify individual spams out of this context. This would preserve the research aims while making the overall intent of the archive more clearly in line with fair use doctrine.
Insofar as the archivist has shown a willingness to remove messages sent by people who identify themselves and provide a reasonable arguement for the removal, I doubt this challenge could stand up to a legal test.
second argument:
It is certainly not reasonable to allow any unidentified person to affect the publication of copyrighted works. Since the intent of the copyright holder is unknown in this case, the status quo is the safest action.
For instance, I could write the following message to Stephen King's publisher on a postcard (SK chosen because he retains copyright to much of his published work):
If the publisher complied with the request in this unsigned missive, he would be in serious trouble. An unsigned and insecure document cannot be trusted as the basis for legal decisions.
In fact, this postcard, delivered through standard mail and bearing Stephen King's actual return address and an assertion that it was authored by Stephen King would probably still be insufficient. This is why legal documents are sent via certified mail in sealed envelopes.
Copyright (Score:2)
If this trend continues then maybe we will get all spammers putting copyright notices on the bottom of their messages.
All we need to do then is block all messages with copyright symbols in them.
Nice =o)
Copyright applies (Score:2)
This is fair use as it is an issue of public import. In addition, you can counterclaim for tresspass to chattel and the TCPA. In your discovery, you can get all their information setting up a bigger counterclaim then any copyright claim could be.
Let them try to come after me. I'd drop them like a bad habbit.
Is it fraudulent spam? (Score:2)
And if they wanted to they would be rather stupidas you would have sufficient information to have them charged.
If it is NOT fraudulent, or you have no reason to believe it is then yes, Advertising copy is copyrighted like anything else, automatically and all rules apply.
IANAL.
Question (Score:3, Interesting)
Supposing I'm sent a spam message and deduce from the headers that it's most likely point of origin was a mail server in a particular domain. I then forward the mail, including all headers as per standing instructions, to the abuse@ address of that domain. The spammer finds out, due to said domain cutting off their connection, and then sues me for copyright violation for reproducing their copyrighted work and forwarding it without permission from the copyright holder.
If the situation discussed here fails, i.e. the spammers prevail, how can I then defend myself against in the situation I described above?
We could be looking at a dangerous precedent here.
Stephen
Fair use. (Score:2)
Now I interpret this site as reporting on the spam, so therefore if you were to use parts of each message rather than the whole thing, you ought to be off the hook.
Of course, I realise that this kinda defeats the point of the site, but it's an something to think about (even if it's just a last resort).
Cunning Plan (Score:2)
Re:Cunning Plan (Score:2)
Standard practice (Score:3, Insightful)
As it happens, this particular case appears to be one of the latter. It costs them nothing to try, but it costs the recipient time in making the distinction. Typical for spam.
I don't know where the physical location of the spam archive is, but if it is located in a jurisdiction that actually has some meaningful anti-spam laws, then chances are good that the referenced 'copyright' spam is illegal - in which case claiming copyright should allow an immediate countersuit (by a real lawyer, even) since the identity of the party responsible for sending it is now firmly established.
( I can't resist joking: Nobody expected this spammish imposition.)
Did anyone read the link? (Score:2)
Yes, copyright law is a real concern, but . . . (Score:4, Informative)
While I doubt that many spammers would actually sue, and while I doubt many judges would be sympathetic to spammers (no juries for copyright cases), copyright law applies.
There are some other complications that will surely arise, including copyright and trademark claims by non-spammers whose rights are impacted by spammers.
For example, we all know that anti-virus and anti-spamming software from major companies is frequently touted in spam emails, always against the instructions of the companies involved (they claim to terminate any affiliates who spam). Arguably, putting "Norton Anti-Virus" or similar things into a public list of spams, might offend those companies' trademark attorneys, though I don't think they could legally stop you from accurately reporting.
Another issue could be someone who copies another persons copyrighted work into a "revenge spam" -- that is, someone like me complaints about a spammer, and the spammer is angry and blames me for his woes, and sends out another spam that is simply a copy of one of my web pages.
But the real issue here is one of damages. While it is possible to obtain an award of statutory damages under copyright law, it is nearly inconceivable that any spammer would jump through the hoops required to become entitled to statutory damages, and in any event no sane judge would make such an award.
Apart from "statutory damages," it is hard to conceive of any loss or damage to a spammer arising from the copying and redistribution of a spam email. First, the original was widely disseminated without charge, and further distribution would arguably just extend the original goal of wide distribution. Second, as noted, the copying of the entire spam is arguably necessary to "fair reportage" about the spam. (Normally, copying a complete copyrighted work is NOT permitted under "fair use," but there is at least an argument to be made here that without copying the entire spam, the reportage is nearly useless.)
Alas, don't forget that spammers don't just file lawsuits to win -- people like Sanford Wallace have frequently sued opponents just to get publicity, knowing that the suit was frivolous and would quickly be dismissed (but the news media rarely reports on lawsuits that are abandoned). Wallace and other spammers just love to wave the "free speech" banner, no matter how many times judges reject those absurd claims.
The organizers of the archive certainly should look to the legal analysis that exists for web indexing and archiving by companies like Google. It certainly would be practical to implement comparable procedures to allow spam emails to include a "no-archive" tag or to submit requests for removal and blocking of certain materials for which they claim rights. I doubt that even 0.001% of spammers would ever pursue these options. But let's be fair: any archive system will inevitably include at least one email "by mistake," so there needs to be a legitimate "removal" procedure. You know that spammers will deliberately seek out ways to send non-spam to the archive, in order to damage the reputation and diminish the reliability of the system -- just as they forge my email address in spams, and take other steps to "punish" truthful reporting about spam and spammers.
Nobody should undertake a project like this without hiring a lawyer for detailed advice on a wide range of issues, including copyright and other intellectual property issues, corporate structure, liability issues, etc.
They can have my physical copy (Score:2)
Since these copies have been given to me by the copyright owner and are therefore legal, then it should be fine for me to give them to the Archive, the same way that people can donate books to a library, right?
Not in Germany (Score:2, Informative)
This solves the copyright problems... (Score:3, Interesting)
If they don't like these terms, they can just disconnect and bother somebody else.
220-xxxxxxx.xxxxxxx.xxx ESMTP
220-
220-This system is located in the United Kingdom and access is governed by
220-the Computer Misuse Act 1990.
220-
220-All users connecting to this service must comply with the Acceptable Use
220-Policy found at http://xxxxxxx.xxxxxxx.xxx/pages/aup.php. Hostile attacks
220-against this system will be reported to your ISP and the relevant legal
220-authorities.
220-
220-Anybody wishing to send UBE/UCE to a mailbox on this server does so with
220-the understanding that I reserve the right to claim £50 (or the monetary
220-equivalent in native currency) per message from the sender.
220-
220-By sending mail through this server, you waive all confidentiality claims
220 in the message and grant reproduction rights to the recipient.
I wish I had gotten it... (Score:3, Funny)
"Thank you for taking responsibility of this abuse. If you ever come under Norwegian jurisdiction, you will face heavy fines and up to six years in prison."
Purpose of Copyright (Score:2)
Copyright law was not created in order to give spammers incentive to spam without consequences.
How about they mark their messages copyrighted. (Score:2)
Since we receive many messages everyday and not every sender would claim copyright on all of their messages and it is hard to tell the difference between copyrighted messages and noncopyrighted messages, so how about this:
In order to handle the relevant messages correctly, perhaps senders should mark all their copyrighted messages with the an appropriate message header such as:
X-Copyrighted: 1
Or even in the message body in a standard unambiguous way. Must be standard and unambiguous to prevent confusion with other noncopyrighted messages.
I'm sure most of us here will then take appropriate action to ensure that their copyright is not infringed and the message _never_ever_gets_copied_ even by mistake.
Copyright may or may not apply... (Score:2)
Re:their threat is bullshit (Score:3, Informative)
reference [bitlaw.com] (I can't vounch for this source's complete accuracy, but I'm sure it has this basic point right)
For the interested, the law has gradually moved away from many of the ritualistic requirements in the past, such as attaching a copyright notice. But such notice is good form, as is registration, to protect your rights as author
Re:their threat is bullshit (Score:2)
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright."
http://www.copyright.gov/circs/circ1
It's clear that copyright takes effect from the time of creation of the work.
However, since the sender has provided a copy of the licensed art work, that you should be able to transfer that work to another person. Ie. Your browswer takes control of the license for a short period of time. If a few people who recieved spam were to transfer their license to the site that it should allow the site to transfer their license to viewers over the internet with out fear of copyright infringement. Also, copyright provides to reproduction for academic / research purposes so spam archives for research should be perfectly protected.
Just my 2 cents
Re:their threat is bullshit (Score:2)
If I recall correctly from my IT Law course some years back (taught by lawyers, but IANAL) this practice you refer to is known as copyright marking. Though the Universal Copyright Convention requires this, the Berne Copyright Convention does not. Thus countries who are members of the UCC but not the BCC may require marking, though my understanding is that the majority of countries do not require this.
Now, being educated in Canada, my course dealt with Canadian Law -- where marking is advised but not required. (See Guide to Copyrights [ic.gc.ca] from the Canadian Intellectual Property Office.) I do not recall what the requirement is for US Law, but don't think the US requires marking either.
So regardless of whether or not there is a copyright symbol, copyright protection may still be there.
Re:their threat is bullshit (Score:2)
Re:Yes. It can. (Score:3, Funny)
No, but they could patent that: "A technique for indicating the relative value of Internet e-mail through subject line modification."
Re:unfortunately... (Score:3, Funny)
I say, tell the representative of said company, that you didn't copy anything. You just saved the original, because you were intruiged by their offer of a larger penis, and later wrote a web page around it when you found out their offer was less than genuine. So you didn't make any sort of copy, you're just letting people see your original.
What's slashdot comming to when a request for a delusional ranting ends up soliciting sensible legal advice? It's at times like this that I weep for the script kiddies.
Re:So.. (Score:2)
What's wrong with junk mail? Unlike spam, it's targeted and limited to sane volumes because the sender is paying the full cost of delivering it (and then some).
Re:Personal Emails (Score:2)
Re:Personal Emails (Score:2)
Not sure how well this would hold up if taken to court though.