From: peterd@bunyip.com (Peter Deutsch)
Subject: Re: Copyrights on netnews articles
Organization: McGill University
Distribution: na
Date: Wed, 29 Jul 1992 22:33:04 GMT

In article <1992Jul29.175149.18287@porthos.cc.bellcore.com> whs70@dancer.uucp  
(22501-sohl) writes:
> In article <1992Jul29.155610.2494@sifon.cc.mcgill.ca> peterd@cc.mcgill.ca  
(Peter Deutsch) writes:
> >In article <1992Jul29.003110.16197@iguana.uucp> merce@iguana.uucp (Jim  
Mercer) writes:
> >>In article <1992Jul28.050144.17029@gtephx.UUCP> forda@gtephx.UUCP (Andrew  
Ford @ AGCS, Phoenix, Arizona) writes:
> >>>In article <1992Jul24.185007.26058@sifon.cc.mcgill.ca>,
 .  .  .
> >>>The Distribution field only determines the geographical 
> >>>area which you feel is appropriate: anyone can repost that
> >>>message all over the world.
> >
> >And are not they wrong for having done so against my
> >instructions?
> 
> No.  Your "instructions" in the form of a distribution code
> only serves as a guide to limit the bandwidth used around
> the country..  .  .
  .  .
Well, if you agree that I have issued instructions, then the operators of
any system that doesn't honour my instructions is potentially in violation of 
my copyright. If you don't agree that I am issuing instructions, than I would
argue that to bring it into line with current copyright law as per the Berne
convention we should add an extension to NNTP and current practice to allow
me to specify handling instructions in such a way that I _can_ issue such
instructions. The fact that the system doesn't do something  that it should 
wont be a defense if and when the lawsuits start.

>  > I've clearly indicated where I think my
> >posting should be going, what more do you want? If we
> >offer extensions to the "Distribution:" and "Expiry:"
> >fields to allow an author to specify or disallow
> >additional distribution and expiry mechanisms I think it
> >would bring us in line with current copyright law around
> >the world and thus be a "good thing".
> 
> The NETWORK is not in violation of any copyright laws and
> does not need to be brought into line.

I plead guilty to sloppy wording. Obviously no one can or will sue
"Usenet", they will be suing individuals whose machines are participating
in the Usenet service. mea culpa of being sloppy. Sorry.
 
> >Remember, when Usenet goes to court and is found in
> >violation of some law, it is the law that will prevail, no
> >matter what the Usenet idealists might prefer. For those
> >who believe in the rule of law that should not be seen as
> >such a bad thing.
> 
> USENET can't be found in violation, only people and legal
> entities (ie. corporations).  As I see it, the question from a court
> would be directed towards the holder of the copyright to explain
> why he/she expected to be able to limit distribution knowing the
> manner in which USENET functions.  That's like an entertainer 
> doing a public performance in a park and then saying, "I don't
> allow pictures of me to be taken by people under 5 feet."  Sure
> he can say it, but there's no expectation of enforceability and
> compliance.

But if CBS takes one of my postings and reworks it into a mini-series
(Tonight! Tales from the Dark Side, "Re: Copyright on Netnews articles", right 
after the news... :-) are you really arguing that there's nothing that
I can do about it? Certainly I couldn't sue "Usenet" but I certainly think
I'd have a good case against CBS. I might not also have a case against the
site that fed them the piece, but that's for a good lawyer to address. I
suspect that for the first case or two they might be asked to come along
for the ride.

> >>also note that Distribution: is broken in that a fair number of sites
> >>ignore the directive in their batching control file (ie. Cnews sys:all/all)
> >
> >I've said it before, and I'll say it again. The fact that
> >some sites are broken (ie some site admns ignore my
> >distribution instructions) does not mean that I can't issue
> >such instructions, nor does it mean that I've got to give
> >up my rights to copyright because some people think I
> >shouldn't have them. The _law_ says I have them, which is
> >the important fact that will be considered when Usenet is
> >taken to court.
> 
> No one argues with your copyright ownership.  The discussion is centered
> on your inability to control the distribution.  Using the 1000
> flyers analogy, if you made 1000 copies of a document you wrote and
> you reproduced them all on green paper and gave them away, do
> you really think you'd win in a court case if you found someone
> ran off another 100 copies on blue paper?  The courts are not so
> stuck on purely technical violations as to ignore the common
> sense approach and the apparent intent of your own actions.

And I've tired (sorry, I meant "tried" but somehow "tired" seems more apt! :-)
to argue that the physical distribution mechanisms are not the issue here, and 
are not what _I_ mean when I talk about "other mediums". Most of this
discussion that has focused on the word "mediums" is missing the point. When I 
speak of "different mediums" I'm referring to taking my work and using it for 
things which are _not_ interactive, distributed, subject-based, automatically 
distributed, automatically expired, bulletin boards.

I agree that if I post something to Usenet I should expect it to go to losts of 
places I've never heard of, but that doesn't mean I've consented to it being 
used by others in the context of something which is _not_ an interactive, 
distributed, etcetcetc bulletin board. This includes redistribution through
other mediums (eg. print, broadcast video, etc) and adaptation or alteration
except as covered by the "fair use" provisions of the copyright laws.

So the question about the flyers seems moot. I don't a priori know how many
copies will be made, but I still think it fair to think I have a fair
idea of what they will be used for. If people take my flyer, print more
copies and use the words as the libretto for a new opera, then they
are probably violating my copyright. If so, then I can sue for damages.
And including my posting in your book, or publishing it in a magazine article, 
or whatever are obviously "new mediums" and not fair use, either. Do we all 
agree on this part? I think it is at the heart of the "it's mine and I own
it" view, in that it involves using the work for commercial gain with the 
author's permission.

> >I suspect that a single successful court case will sadly
> >see a lot of sites go off the air for a while, and perhaps
> >force a lot more to fix their broken software. It would be
> >nicer if this could be avoided by convincing people that
> >honouring authors' instructions on distribution is (to
> >quote Wilfred Brimley) the "right thing to do", but that's
> >not very likely given our experience with software
> >copyright in the past.
> 
> I suspect that if anyone goes to  court to sue for a copyright
> violation on one of their posts, that they will fail because the
> courts will look at the nature of the network and the fact that
> as the originator of the post you should have known and expected
> that you have no control of the distribution once you hit the
> send command.

Again, like broadcasters, I can send things out far and wide without 
automatically authorizing you to reuse my work in other mediums without
my permission. That has been seen to be true in any number of examples. Try
publishing a book with all the scripts from Cheers and see how far you get
before Burrows, Burrows and Charles comes after you...

Of course I don't know who will get to read my postings. I should certainly
expect to win a case if a reader take what I send them and uses it for 
commercial gain without my permission and I think that's what those who are 
arguing for copyright are talking about.


> > People usually need a reality check
> >before they will act in their own self-interest and I
> >suspect that one day, sooner or later, we're going to get
> >it in the form of a copyright infringement lawsuit by some
> >large publisher against some large Usenet providers. Not
> >today, not next week, but eventually, I suspect...
> 
> If by the above you mean a large publisher that discovered
> elements of their copyrighted material had been posted by "X,"
> then I suggest that the violation will not be against the
> network, but against "X" and I'll assume here that X is probably an
> individual.  If I make 100 "illegal" copies of a software
> disc, the makers of my PC are not in violation, nor is the
> disk supplier.  Likewise, have you ever heard of Xerox being
> successfully sued because someone used their equipment to
> make bogus copies of a copyrighted article, etc.?

Again, I admit I was being sloppy in my wording.

Now, about PCs and software copyright, we had a case in the local paper today 
about a PC distributor being found guilty of copyright violation for 
distributing copies of MS-DOS on clones he was selling (ie he distributed 
copies of something that was copyrighted without the owner's permission and got 
nailed). Seems to bode ill for those who illegally distribute copyrighted 
postings, including possibly larger Usenet service providers on commercial
sites. I agree that anyone distributing in the context of an 
interactive<blahblah>bulletin board is probably safe, but woe betide the CD-ROM 
people, the magazines, etc when the time comes. Also, if you have some reason 
to believe that a posting should _not_ be served (ie it contains someone else's
work) you're probably at risk.

I believe that the first cases will involve a publisher going after a) the 
poster and b) the large service providers that make Usenet available to their 
readers. Will the service providers loose? I don't know. If it could be shown 
that people received illegal copies of copyrighted material from them then I 
suspect that they might be in trouble. Maybe not, but as several people
have pointed out, it is the information in services such as Usenet that
people are bying, not router cards and bitstreams. If I argue that you have
illegally profited from my work, I think you might be writing me a cheque.

On the other hand, maybe only the poster and the user of illegal material are 
at risk. I'm not a lawyer, so this is  speculation on my part. I wouldn't mind 
hearing a lawyer or two's opinion on this.

Maybe the providers don't have to worry, but certainly those who reuse without
permission should start thinking twice...

> >It's sad, but I suspect that the frontier days are
> >starting to draw to a close. I just saw the latest DNS
> >survey, and we're just under one million hosts (up from
> >about 730,000 in January). The number of people, and thus
> >the amount of money involved, is growing exponentially...
  .  .
> The same anaolgy could be made for PC usage, VCRs, etc.  Bottom
> line is that the technology has not had to bend to the law,
> rather the law recognizes (sooner or later) that the technology
> exists and anyone that uses the technology needs to be aware
> of how it works, its limitations, and its impacts on previously
> easily protected intellectual property rights.

Well, with PCs people and large corporations were found guilty of copyright 
infringement, paid fines and then the illegal copying of software was 
curtailed. Video store owners were found guilty of illegal copying of videos 
and paid fines, and the practice was curtailed, and so on. I think it 
is a little simplistic to argue that the law will catch up _to_ us. I suspect 
that if we are not careful it will catch up _with_ us.....



					- peterd
Newsgroups: comp.org.eff.talk