From: hartman@ulogic.UUCP (Richard M. Hartman)
Newsgroups: news.admin
Subject: Re: Why we need a "Copyright:" field (was: Re: NetNews/CD  .  .  .)
Date: 12 Aug 92 21:32:58 GMT
Organization: negligable

The parent of this was long, so I'm just going to pick & choose...

In article <1992Aug10.044101.9904@sifon.cc.mcgill.ca> peterd@cc.mcgill.ca (Peter Deutsch) writes:
>[* in a single burst of netiquette, I feel I must point
>   out that this one is _long_. I tried to cut, but there
>   was a lot to answer. Hit 'n' now if you're fed up with 
>   this debate... *]
>
>In article <1992Aug8.031705.20250@talon.ucs.orst.edu> stanley@skyking.OCE.ORST.EDU (John Stanley) writes:
>>In article <1992Aug7.044953.11537@sifon.cc.mcgill.ca> peterd@cc.mcgill.ca (Peter Deutsch) writes:
>
>Remember, the object here is not to be difficult because
>we like to be difficult, but because there are real
>problems with current practice (IMHO, mostly in the area
>of preparing derived works) in which copyright is clearly
>being violated. I don't think arguing that it _shouldn't_
>matter is a reasonable defense, so I'm suggesting a few
>simple extensions to what we do now.

Unfortunately -- I disagree that copyright is "clearly" being
violated.  Some cases yes, some cases no.  If it were so "clear"
we wouldn't be having this humongous thread now, would we?

Also, the question exists as to whether we can *prevent* anyone
from creating a derived work.  That shouldn't be our job.  That
is what the courts & copyright law are *for* -- if someone creates
a derived work -- go after 'em.  I can check out Tom Sawyer from
the library, use a bit of whiteout & a pen to change all the names,
Xerox (tm) it & sell it.  Then the publisher comes after me with
laywers blazing -- he doesn't try to publish it on Xerox(tm)-proof
paper....

[ ... bunch of argument about whether archives are part of USENET deleted ... ]
>Sounds like a different service to me.

It is a different service.  It is not USENET *News*, but it *is* a part
of USENET.  What we have here may merely be a difference in terminology
and usage....

>
>There are a collection of characteristics that define
>Usenet and archives just don't have enough of the
>characteristics to convince _me_. You may be convinced,

According to your limited definition of what USENET is.  I posted
one to which I hope you've replied, but I haven't read that far
yet.....

>>Anywhere that USENET articles go which follows the RFC's which define
>>the format for USENET messages. That is the only definition that
>>includes everything that is USENET without excluding things that are
>>not. Even that discards things like FIDO and news digests, which could
>>very well be considered USENET.
>
>So, if someone FAXed all the articles to Byte, and they
>ran them with headers included, it would be Usenet? They
>would not be preparing derived works? I'm sorry, this
>strikes me as _way_ to unrealistic to be functional.

Would that follow the RFC's?

>>>God, this is getting tiresome. This will _not_ "create"
>>>the ability to limit. PEOPLE HAVE THE ABILITY TO LIMIT
>>>NOW!!! 
>>
>>NOT WITHIN USENET!!! EITHER POST AND IT GOES EVERYWHERE OR DON'T
>>POST!!! Those are the limits. 
>
>Actually, I was refering to the ability to limit the
>preparation of derived works and otherwise exercise
>copyright after initial copies are given out. Sure, I can
>give everyone on the _planet_ a copy. that does NOT mean I
>gave Byte permission to run their copy in the next issue.
>Can't you at least agree on _that_?

Not quite.  Even the book publishers do not have the *ability*
to limit copies -- which is why copyright laws (the legal remedy)
exist.  Because *rights* and *abilities* are not always consistant.

>And the only problem I have with this is that you have
>defined "Usenet" to be anyone, anywhere who gets the
>message. I'm _positive_ that wont fly in court.

Who gets the message according the the specs of USENET distribution
RFC's.  A different matter entirely.  Sort of like saying that I must
live in Atlanta because I can receive WTBS.  I get it on cable,
and don't live in Atlanta.  Someone can "get the message" and still
not be a part of USENET -- and that is where the copyright violation
would occur, with the redistribution of the message beyond the bounds
of the USENET.

>>If we start saying that posters have a reasonable expectation of
>>ability to limit transmission of articles within USENET, then we will
>>have the law applied to us and it will hurt. If posters have NO control
>>of where things go within USENET, then they have no grounds for a
>>lawsuit when what they post goes somewhere within USENET that they
>>don't want. 
>
>Sure they do. If someone somewhere acquires a copy of a
>posting, and then tries to prepare a derived work, there
>are grounds for a lawsuit. I will accept that attempting
>to say "fred's machine can't have a copy" is currently
>unrealistic, but saying "derived works" (where the term
>"derived works" is still contentious) leaves plenty of room
>for lawyers. You can't avoid this by trying to define
>Usenet to be "everyone, everywhere". I suggest you try to
>be a little bit more realistic. In the long run it's safer.

Arguing on different issues here -- some people have maintained
that USENET distribution itself can violate copyright on a posted
article.  Read the previous paragraph carefully, the final line
is "no grounds for a lawsuit when what they post goes somewhere
within USENET that they don't want".
^^^^^^

You then go on to argue about a derived work -- which is an
entirely separate issue.  Some few have maintained that articles
posted become public domain, and they would argue with you on
that point.  But most (reasonable :) people would grant you
that a derived work would violate the copyright.  That has
nothing, however, with limitation of distribution to a subset
of USENET as a whole....

Let's try to discuss one issue at a time instead of replying
to one by talking about another, it gets me a little confused.... ;-)

>The issue is not really preventing people from acquiring
>material, 

With some people it has been.  And that is the only issue that
could be solved by adding a Copyright: header anyway.

>it's controlling what they can do with it when
>they acquire it. 

And this is what the copyright law and the courts are for.
If it goes out, in any form (electronic, printed, broadcast)
the originator no longer has physical control over what the
people who receive it will do with it.  Copyright law attempts
to remedy this by placing *legal* controls over what those people
can do with what they receive.

>>>material I am (it seems) clearly at risk of a lawsuit for
>>>preparing derived works without the author's permission,
>>>unless I can show that the author disclaimed copyright.
>>
>>Unless those derived works were as a part of USENET. A WAIS index is
>>technically a derived work, yet you cannot prevent me from creating
>>one. Perhaps my newsreader is based on WAIS, and it is required before
>>I can read your article.
>
>Again you seem to be somewhat confused over the power of
>Usenet to protect you from the harm of a lawsuit. Yes, you
>can physically collect all those articles, prepare WAIS
>indexes, French translations or clever anagrams from them
>and sell them.  Nothing is stopping you except the
>copyright law, which would clearly be violated if you did
>any of this and redistributed it.

The key here is "and redistributed it".  If the WAIS index
is compiled for personal use, and not redistributed, I believe
that that would be covered by "fair use".

>But indexing just this thread (oh God, why would anyone
>want to! :-) , and distributing that index as a commercial
>product would be a derived work. It's not the WAIS, it's
>the redisribution after processing that's the problem here.

Exactly.  So who is doing this?  His comment was that *he*
was creating the index because *his* newsreader required it...

>>  5) Someone cannot infringe on a copyright by copying when the holder
>>  of the copyright has given permission for or commanded that copying
>>  to occur.
>
>Sure they can, by preparing and distributing derived
>works, for example.

But then it is not just a copy, is it?

>>>For example,
>>>if I were to send a registered letter to the people who
>>>are preparing CD-ROMs of postings instructing them to
>>>remove my stuff, and they don't, and I wanted to spend a
>>>little (okay, a lot! :-) of money on lawyers, do you
>>>really think I'd loose? 
>>
>>Yes. You posted the material to USENET, thereby either granting
>>permission to copy or doing the copying. They are part of USENET.  You
>>knew this before you posted. You posted anyway. Your instruction to
>>copy the material came after your instruction not to. They followed your
>>most recent instructions.

I would have to take the first side here.  If the CD-ROM producers
have specific notice to exclude a particular author's works from 
their product, I think they would have to put that author in their
kill file to prevent violating the explicit restriction.  Note, however,
that the method by which they were told did not involve a new
"Copyright:" header.....

Without such an explicit notification, the case would become much
fuzzier.

>Actually, this is the heart of the dispute. You claim
>catagorically that archiving is a part of Usenet, and I
>claim it is a derived work. If I prevail, I win my suit.
>Even if I loose, I see no reason to believe that the suit
>would be considered frivilous so you're out of pocket for
>lawyers and have to spend time in court. Seems kinda risky
>to me...

I'd have to agree.  You would probably loose, but archive
copies of commercial programs have already been found to
not violate copyright.  I see no reason to now assume that
a News archive would be any different.  If, however, that
archive was redistributed........?????

>I do wish people arguing this side of the debate would
>spend less time on the word "copying" and more time
>thinking about what happens when these postings get turned
>into "derived works".

Then it goes to court.  There is nothing we can do to the
distribution software or the readers that could physically prevent
the creation of "derived works".  No one (except the pd faction)
has claimed otherwise.  And I haven't heard from them in a
while.

>No matter which way the copying issue comes down (push or
>pull) there is _nothing_ in the act of posting that
>permits the preparation of derived works in violation of
>the Berne convention without some clear indication from
>the holder of the copyright. 

No argument so far.

>To act as if there is (and
>assuming that copying to anywhere, anytime is okay is only one
>example of this) seems risky in the long run, as we become
>an audience large enough to attract the attention of
>publishing conglomerates, media moguls, and so on. 

The assumption that copying is ipso facto a derived work, 
however seems unjustified.  Unless your adding the "anywhere, 
anytime" is some key part of this statement.  If that is the
case, you lose because "anywhere, anytime" is not what we are
talking about -- we are talking about copying throughout the
USENET.




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