From: brad@clarinet.com (Brad Templeton)
Subject: Re: NetNews/CD - USENET News Available
Organization: ClariNet Communications Corp.
Date: Sat, 25 Jul 1992 09:30:16 GMT

There's a lot of talking at cross purposes here.  Let me try to sum this
all up trying to stick to facts and not using analogies or other things
that lead people off on tangents.

Facts:

o) Under current law, any original creative work is copyrighted the moment
it is expressed.  This article is an example of something that is
copyrighted.  The copyright exists whether you claim it or not.  It only
fails to exist if I explicitly say "I abandon the copyright/place this
work in the public domain."   (Or of course if it's not original or
creative.)

o) As copyright owner of this work, I have almost complete control over
who may copy it and how.  The default is that nobody has permission to
copy it, except myself and those I give permission to.

o) I have posted it to USENET.  Because USENET is mostly implemented by
store and forward, with flooding, this has caused a great many copies of
this article to be made and stored in the spools of machines around the
world.   Furthermore many will copy it again to read it.
Some may save it out.  Some may back it up to tape.  Some may print it.
As it turns out, most of these copies will be made in the next day.
99.9% will be made in the next week or so.

o) In the eyes of copyright law, humans make copies.  Humans own copyrights
and grant permission to other humans to make copies.  Machines do not grant
or receive permission.  They are tools.  They take orders.  Machines do
not make copies, people make copies, using machines as tools.  (This is
the legal view, not the technical view.)

Now, one can interpret the massive copying of this article in a number of
ways:

	a) All the machine owners of the net have granted outsiders
	limited permission to use those machines as copying tools.  I
	have, under that authority, commanded all those machines to copy
	this article to all those places.   I am the copier, in the eyes
	of the law.

	b) Each machine on the net made a copy, but instead of I being
	the copier, somebody else is.  One presumes that the copiers
	must be the owners of net machines which created the copies.
	For the copying to be legal, this assumes that I have granted
	permission to those machine owners to make these copies.

	c) Both I and the machine owners are copying this article
	in some sort of joint fashion.

o) The person who is the copier is responsible for making the copies.
If the copying turns out to have been an infringement, the copier is
liable.  If the copying constitutes the publishing of libel, the copier
is joinly liable with the author.

o) Copying of the article likely to take place takes two forms:

	A) The copying is automatic.  No human being examines the
	article before it is copied as a means to decide wither to
	copy it.

	B) The copying is non-automatic.  A human being examined the
	article, and this examination was used in making a decision as
	to whether or not to copy the article.

The vast bulk of copying is type A.  (Here I'll stray from facts and add
that to me, the type A copying is USENET, and that the type B copying
which takes place without the permission of the author is not USENET.)

o) One can't violate one's own copyright.

o) Most general copyright licence terms are valid and binding upon those
who might wish to copy an item.   The exceptions are generally
explicitly defined by statue or case law.


I hope most will agree that the above are fairly straightforward and
factual.  No analogies.  Now consider the three interpretations above
in the following scenarios.   Actually, consider mostly the first two.
"Joint copying" mostly results in the worst case of the above two.

Scenario 1)  Ordinary USENET article.

	All three interpretations work just fine.

Scenario 2)  Copyrighted USENET article forbidding transmission by UUNET
(because it charges money, say) in a copyright licence statement.

	A) The prohibition is meaningless.  The author commanded uunet
	to copy the article.  UUNET's owners and staff weren't in the
	loop.  The author can't violate her own copyright.  So there is
	no violation when uunet's machines copy the article on behalf of
	the author.

	B) If the law recognized some sort of implicit permission, there's
	a conflict.  Normally explicit licences supersede implicit ones,
	unless there is specific case law to say they don't.  (An example
	of specific law -- you can make backup copies of software even
	if the licence on it says you can't.)   The outcome is hazy.
	If we assume that the implicit does win out, then the
	restriction is superseded, and thus not valid.  (Big assumption)

Scenario 3) Copyrighted USENET article prohibiting republication in
	any newspaper.

	A) The prohibition is valid.  Such republication would in all
	probability require the independent action of a new human
	being, who would be the copier, and the author would not be.
	New (non-author) copiers are subject to all valid restrictions.

	B) Morass again.  One assumes the implicit permission is for
	USENET only.  We are required to define USENET and figure out if
	this republication is part of it, and thus that the implicit
	rule supersedes the licence.

Scenario 3) Lotus 1-2-3 is posted without permission.

	A) The poster is liable for violation of Lotus' copyright.  The
	sites that allowed the copying are only liable if the courts
	decide that granting open access to your computer for copying is
	not a good thing to do.

	B) All sites that copied the article under the assumption of
	permission are instead liable as copyright infringers, since
	permission was not present in this case -- it is not within the
	poster's power to give.   The poster is also still liable.

Scenario 4) Libel is posted

	A) The poster is liable for the defamation.  The other sites
	might slimly be included, but the recent Compuserve case indicates
	that they would not be.

	B) All the sites of USENET are in effect, publishers who distribute
	copies of the article to many parties with the author's permission.
	As publishers, they may be co-liable for the defamation.  They
	may, however, get away under the Compuserve ruling, but this is
	harder to say.


I hope this lays out the facts a bit more plainly.  Which interpretation
do you take?  Which is the easiest to understand?  Which allows USENET
to flow.  Under which interpretation would most legal departments of
the big institutions and companies on USENET be more pleased to act?
-- 
Brad Templeton, ClariNet Communications Corp. -- Sunnyvale, CA 408/296-0366
Newsgroups: alt.culture.usenet,news.admin,comp.org.eff.talk,misc.legal.computing