From: brnstnd@nyu.edu (Dan Bernstein)
Newsgroups: misc.legal.computing
Subject: Facts about USENET distribution
Date: 28 Jul 92 19:31:56 GMT
Organization: IR

(Trouble with news software: this article should have appeared days ago.)

Fact: USENET sites have set up a mechanism by which copies of any
article injected at one site are automatically transmitted to most other
sites and saved for various periods at some sites.

Fact: Someone who posts an article to USENET is given notice that copies
of his article will be sent automatically to many machines around the
world.

Fact: Copyright is an exclusive right: the owner of a copyright has the
right to exclude others from copying his work.

Fact: An author can explicitly limit or waive a copyright he owns.

Fact: Under current law, all writings which are not explicitly placed
into the public domain are copyrighted.

Fact: Most articles aren't explicitly placed into the public domain.

Fact: Some copying of copyrighted works is permitted as ``fair use.''

Fact: Unauthorized computer use is illegal.

Let's start drawing some conclusions from the facts. First of all, most
articles are copyrighted. Therefore the author of an article has the
right to exclude others from copying his work. But when he posts the
article to USENET he knowingly causes it to be copied automatically to
many USENET sites.

Is an author liable for the use of computers around USENET to store and
forward his article---e.g., the disk space? No. The mechanisms by which
the author caused this disk space to be wasted (uh, used) were set up by
the owners of the machines with the intent that they be used in this
way. So this use is authorized.

Are USENET sites liable for automatically copying copyrighted articles?
I'm willing to bet that a judge would rule that the distribution of an
article through USENET constitutes copying by the author, because it all
happens automatically as soon as the author posts the article. But *even
if* the judge doesn't rule this way, the fact remains that the author
was notified of what would happen to his article. Note that it's
irrelevant whether or not the author added a notice permitting the
copying which he caused to happen.

Is a CD-ROM distributor of USENET articles liable for this copying? If
the judge decides that the CD-ROM distribution is automatic then this
is covered by the previous paragraph. This is what I expect to happen if
any such case gets to court. It's much less clear if the distributor
keeps selling CD-ROMs for years to anyone who comes along and pays. I
simply don't know what will happen if someone takes Sterling to court
for this.

The concept of a CD-ROM distribution bugs many people because they
didn't expect their articles to be archived and sold for all eternity.
Certainly if I were setting up a replacement for USENET I'd make sure
that all articles had Non-automatic-copying-permitted-until headers,
defaulting to a few months or maybe a year. Then things would be clear.
But in the current USENET they're not.

Are USENET sites liable for illegal material which an author posts? The
common sense answer is ``of course not.'' A site doesn't control the
content of articles passing through that site; articles are forwarded
automatically. Providing a medium by which people can communicate does
not make the provider liable for the use of its medium. This used to be
a murky legal area, but the Compuserve case sets a strong precedent in
favor of common sense.

Is an individual reader liable for saving articles from a USENET site?
Generally, no, because the copying is fair use. Taking my recent article
on export regulations, chopping my name off it, and selling it as part
of an information booklet is not fair use. Printing it out and sticking
it on your refrigerator is fair use.

What about other non-automatic copying of an article to something other
than a machine? Unless the copying is fair use, this is illegal. The
author certainly didn't cause any copying of his article beyond the
automatic copying to USENET sites; and he was told only that his article
would be sent to thousands of machines. So I can't see any basis under
which a judge would declare the copying to be legal. (Note that this
doesn't apply to things like GNU software, where the author explicitly
limits his copyright; I'm talking about the majority of articles.)

I invite anyone who disagrees to explain the exact basis under which it
would be legal to, e.g., collect a book of all Chris Torek's postings,
and sell it without Chris's permission. What do you say if he sues you
for copyright violation? Please don't bring up any concepts which have
little, if any, basis in the law.

What about archiving of an article for anonymous ftp for all eternity?
Obviously it doesn't matter here whether the automatic copying of an
article is the author's action; fetching an article by anonymous ftp is
not automatic! A judge here would have to decide whether the author
should have expected the archiving. In the case of a newsgroup like
alt.sources, where there are notices plastered all over the place, the
answer seems clear. For any newsgroup, if the archiver is good about
deleting articles from the archive upon request, then there's probably
no problem.

Review: The crucial issues are (1) whether automatic copying constitutes
copying on the part of the author (I see no reason for a judge to say
no, and I sure hope he says yes); (2) what notice authors were given
(this is clear), and what they had a reasonable right to expect (this is
fuzzy around the edges). I would say that the difference between
automatic copying and non-automatic copying is crucial, and will
determine what happens if Sterling is taken to court.

The two issues which seem almost entirely irrelevant are copyright
notices and charges; copyright notices generally accomplish nothing, and
USENET has never come free of charge.

---Dan