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Date:         Thu, 8 Oct 1992 11:43:30 CDT
From:         MJENSEN@charlie.usd.edu
Subject:      copyright

----------------------------Original message----------------------------
>From: Neal_McBurnett@ATT.COM (Neal McBurnett)
>
>Copyright prevents me from copying something.  It says nothing about
>who should be able to read it - a trade secret would be good for that

I wouldn't be so sure that the copyright law says nothing about reading
messages.  In addition to the reproduction right it includes a public
performance and a public display right.  And the legislative history
makes clear that displaying something on a computer screen in a place
open to the public is a public display.  If you are reading this message
on a computer screen in a library or even an office, you are probably
engaging in a  public display; a ght reserved to the copyright holder.
One of the points I make in my article "Is the 1976 Copyright Act on
a Collision Course with the Library Without Walls" is that the way
the act defines public performance and public display, we can't even
read the books in the electronic library without permission in the
form of a license from the copyright holder.  We discussed the messages
on the list issue at length on CNI-COPYRIGHT.  We did not agree on
a lot of points in the discussion.  We did agree that the copyright
holder who wrote the message gives implied permission for the subscribers
to the list to do the displays necessary to read the list.  We could
not agree on much past that point including whether or not someone
who posts a message to one list gives implied permission to show that
message to someone not a subscriber to the list.  Nor could we agree
upon whether or not forwarding a message from one list to another
without permission of original message sender was copyright infringment.
Rut remember, reproduction is not the only right involved.  Nor is
the analogy of print to electronics always appropriate in copyright
analysis.

>From: Ken Laws <LAWS@ai.sri.com>
>Subject: Re:      Comments on Gutenberg Newsletter

>Copyright is copyright.  Adding additional restrictions to the
>[optional] copyright notice has no legal effect.  Furthermore,
>under the Berne treaty there is no legal difference between
>published and unpublished work, so the question of whether net
>submission is publication need not arise.  (U.S. courts still
>tend to give extra protection to unpublished works, but I don't
>think they would do so in this case.)

Copyright is copyright and I agree that you cannot give yourself
more rights with a notice than the law gives you, but as I have
explained above, copyright gives you different and probably more
rights in the case of electronic works than it does for print works.
I wouldn't say that Berne makes no distinctions between published
and unpublished works.  It makes fewer than prior U.S. law did
and the distinctions it makes are probably not applicable to your
comments, so I won't go into detail on them.  But please be
careful about making categorical statements about what the law
says.  They can come back to haunt even the copyright experts.

>It's a "shrink
>wrap" license, the sort of thing which U.S. courts have always
>ruled invalid.
Not all shrink wrap licenses are invalid.  Courts have routinely
enforced unilateral printed terms on the back of baggage claim
checks and in other forms of contracts.  Some states will invalidate
unilateral contracts as contracts of adhesion where the parties
don't have equal bargaining power.  Even in the realm of computer
software, I don't think the courts would invalidate all shrink wrap
license terms.  They will invalidate those terms which are in
conflict with and preempted by copyright law, but how much further
they will go in invalidating shrink wrap licenses is very unclear.

Mary Brandt Jensen University of South Dakota
Director of the Law Library             School of Law
Associate Professor of Law414 E. Clark St.
MJENSEN@CHARLIE.USD.EDU                 Vermillion, SD 57069-2390
(605) 677 6363                          Fax (605) 677 5417
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU