From: swf@teradata.com (Stanley Friesen)
Newsgroups: news.admin,comp.org.eff.talk,misc.legal.computing
Subject: Re: Net Culture assumptions! (very long!)
Date: 30 Jul 92 23:10:54 GMT
Reply-To: swf@tdat.teradata.com (Stanley Friesen)
Organization: NCR Teradata Database Business Unit

In article <0e7d021W1c4U01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
|In article <787@tdat.teradata.COM>, swf@teradata.com (Stanley Friesen) writes:
|> In particular, the person to whom you give the work may *not* make and
|> sell *additional* copies of the work without your permission.
|
|Right.  Yegads, I hope I didn't appear to imply otherwise.

I don't think you did, but some people seem to have a hard time seeinmg
the distinction, so I spelled it out.

|> Really copyright is so bloody simple.  I wrote this article, so I have
|> the copyright in it.  I posted it, so I arranged for all of the machines
|> in the usenet distribution to make copies, and I have made those copies
|> available to all of the usenet readers.  I have *not* released my copyright
|> in this work.
|> 
|> All copying by humans , other than 'fair use' is illegal unless I give
|> permission to do so.
|
|Well, 
|
|1) there's more to copyright than the right to copy; there's also the rights 
|to: distribute; prepare derivative works; display; publicly perform; claim 
|authorship; atristic integrity.  Some of these can't be applied to all works 
|(e.g., display of a novel)
|
|2) There are a number of exceptions to the 106 and 106A copyright rights 
|besides fair use.  The exceptions occupy sections 107 (fair use) through 120 
|(which I think covers secondary transmissions by superstations and network 
|affiliates).  Fair use is just the one you hear about the most.

True enough.  However I don't *think* any of the others really apply
to usent.  (The superstation/network stuff is truly complex, and confusing,
so I *hope* it doesn't apply).

And I don't think we're a library!  So the library exception don't apply.
(For those who have not yet read the code, there are a number of provisions
to protect libraries, and to make it easier for librarians to maintain
good collections).

I am not too sure about the the various situations in which archive
copies are permitted/required, but some of them *may* apply to usenet.
(On the grounds of some usenet carriers, like uunet, being common carriers).

So, for most purposes, the fair use exception is the main one of concern.

|> Now, given the nature of usenet, any quoting in a reply is fair use,
|> regardless of any copyright notice.  It is almost certain that making
|> a single personal copy of any article for personal use is fair use
|> (given the general nature of article posted on usenet).
|
|Probably is fair use.  Depends on the circumstances and facts.  If someone 
|posted a fictional story, and you quoted the entire thing into another 
|newsgroup, that might not be fair use (fiction, quoting all of it, and the 
|non-educational environment work against fair use; but the fact that the re-
|posting didn't affect the market for the work is in favor of fair use). 

That is why I qualified with the 'given the general nature ...' bit.
A posting of a work of fiction on usenet is rather unusual except in certain
very specific news groups.  (Mind, I would never repost an entire work
of fiction anyway, because I would tend to feel it was not fair use).

|> I suspect that even making an archive copy would be considered fair
|> use, since I already know such activity is common.  (Also, at least in
|> the U.S.A., copyright law provides specifically for various categories
|> of carriers to make archive copies, so the principle is well established).
|
|There's an express provision for archival if it's open to the public, in 
|section 108 or 109.  108, I guess; 109 is the first sale doctrine (right to 
|resell your own copy).

Ah, now, does it apply to usenet? I had a hard time telling.
It seemed aimed mostly at performance media and libraries.
(This is getting into the more difficult portions of the copyright law,
and if it mattered I would want to get a lawyers opinion on it).

|> And, of course, fair use covers alot of ground.
|
|Fair use is a good deal more than people suspect.  And a good deal less.  
|It's unfortunately named; it implies "a use which is fair", when in fact it 
|is an pretty specific (although muddy) set of tests that are applied.

The important thing, however, is that it covers *most* of the reposting
done on usenet, so it should not interfere particularly with the
continued operation of the net.

|> Absolutely.  There is no possibility of ambiguity here.  The law is
|> *quite* explicit, and, for a change, it is written in plain, clear English.
|
|Well, to be fair, I wouldn't call it plain clear English.  I'll have to look 
|up section 301, and post it: It's the statute that pretty much says "federal 
|copyright preempts any state copyright", but I recall it as being 
|particularly difficult to parse.
|
Actually, I found the "fixed in any media" business about the most complex
part of the base law.  Of course it is also very clever - no more worrying
about whether a new technology is covered - it is.  Lawyers do seem
capable of learning from experience once in a while :-)

(Again, as a point of information - the law as written applies to *any*
creative work, no matter what medium is used, even media not now known).



Really, the main reason I am posting is bacuase Terry does know the copyright
law, and he understands what it means, and I think it important that
everyone realize that that *really* *is* the law.


There are really only two points where there is scope for interpretation
in regards to usenet.

1) *Who* is doing the copying when an article is posted.

2) *How* *far* the boundries of usenet extend (for purposes of posting).


I'm afraid every other substantive issue is pretty well nailed down by
the text of the law.  (Archiving and large scale quoting of articles
from fiction news groups not being quite as large as issues).
-- 
sarima@teradata.com			(formerly tdatirv!sarima)
  or
Stanley.Friesen@ElSegundoCA.ncr.com