Recently a major Internet Service Provider announced that anyone posting e-mail messages on discussion lists it runs would be required to assign to the ISP all rights in those messages. Although the provider's demand was broader than necessary, it made good sense. Those who host e-mail lists should protect themselves from unwarranted claims of copyright infringement, and getting explicit rights in posted messages is the best way to do that.

This discussion addresses such issues from the standpoint of those who write e-mail as well as those who might want to forward, archive or otherwise use another's posting.

Copyright law gives people the right to exclude others from copying what they have written. Copyright arises automatically as soon as a protectable work has been fixed in a tangible medium such as a floppy disk or hard drive. Thus, a poem or letter, once saved to disk, is as much protected as if it were put on paper.

Registration is required only if a U.S. copyright owner wants to bring suit. Copyright notice is unnecessary. Yet, as explained below, promptly registering a work provides important advantages, as does providing notice such as "Copyright 1999 Journal of Electronic Publishing."

Basic Limits to Copyright Protection

Copyright protection has several fundamental limits. First, facts and ideas are not protected, only original ways of expressing them. Also, as suggested by the word "copyright," a second work that merely happens to be very similar (or even identical) to an earlier one does not infringe if it was independently created. Other limits to copyright protection include:

Fair use:

Fair use occupies about half of the copyright statute and grants limited rights to use others' works, regardless of approval. It is the least clear-cut limit to copyright because words like "fair" or "reasonable" cannot be defined with precision.

Uses that advance criticism, education or scholarship are favored—particularly when the amount copied is small. Uses that generate income or interfere with an author's ability to earn a living are not. Also, fairness means crediting original authors. Thus, a teacher who copied, without credit, much of another teacher's course materials was found to infringe.

Commercial uses of another's work is disfavored. For example, anyone who uses another's e-mail message to suggest endorsement of a particular product is asking for trouble. Yet, all commercial uses of another's work are not forbidden—most magazines, newspapers, and even many professional journals are operated by for-profit entities, and the Supreme Court has said that their uses, as in quotes within an article, for instance, may nevertheless be "fair."

Licenses implied by circumstances:

Fair use is a legal license conferred by the statute. However, licenses may also be implied by context. Writers who post messages to public e-mail lists should contemplate, for example, both forwarding and archiving. It is reasonable to assume that they have given permission unless it is explicitly denied.

One Web site asserts that list owners have the right to approve the forwarding of e-mail from one list to another. Yet, barring a rule applicable to a particular list, I am aware of no legal basis for it. On the contrary, one would not expect members of most e-mail lists to object if their messages are forwarded to others likely to be interested.

Likewise, few who post to public lists would object to having their messages archived. Archiving clearly serves the interests of members who may occasionally want to revisit topics addressed earlier. Indeed, most would prefer that to seeing topics rehashed—the reason one often sees lists of frequently asked questions (FAQs) with answers.

Can writers revoke permission once granted, say for messages they later wish had not been sent? Circumstances that would warrant a revocation of an implied license are surely rare. Courts generally do not favor imposing unreasonable obligations on others. Because list owners cannot recall messages once distributed, authors should be careful what they post.

One more caveat is in order about implied licenses to use other's postings: If you forward a message or use part of one in responding, do not change the author's meaning. No one implies permission to attribute embarrassing (or worse) messages they did not write!

Expressed Licenses—Put It on the Table!

To avoid some copyright questions, one Web author posts this amusing notice:

WARNING: I reserve the right to use any e-mail you send to me as either a testimonial of how great this page is, or as an (rare) example of the stupid things people send to me via e-mail. If you do not want your e-mail to be used in such a manner, mark it confidential....

That seems both reasonable and expected.

Still, many e-mail problems could be avoided if list owners would broadcast, on initial subscription, a notice addressing matters of concern. A brief one appears below. List owners who care to use it are hereby granted permission, but please do not regard it as a fool-proof solution to potential copyright (much less other) problems.

Members who post to this list retain their copyright but grant a non-exclusive license to others to forward any message posted here. They also grant the list owner permission to maintain an archive or approve the archiving of list messages.

Other use of e-mail to this list requires the permission of individual writers.

Special Situations

E-mail lists are very diverse. As an extreme example, consider a prostate-cancer listserv. The welcome message advises in part:

Now that you have subscribed, you are encouraged to send a note introducing yourself. ... If your concern is about a prostate cancer diagnosis, also include your PSA blood test result, Gleason score, and cancer stage. .... If you have deleted or missed messages these can be found by accessing the archives with this message. ... [Several archives are listed.]

Each subscriber to that list (as well as to many others) should consider the implications of having personal information made public, much less archived. For example, it could end up in the hands of employers or others who might use it for improper purposes. When potential misuse is a serious threat, e-mail users should keep messages private.

Private Lists

"Private" lists can be created in which all who sign up agree not to forward messages (or to delete the identity of authors before doing so). List messages can be archived anonymously, if at all, or access can be limited by use of passwords.

Such an approach should avoid "fair use" problems because contract law (what people agree to when joining the list) should govern. Copyright should have no bearing on the use of messages never intended for public distribution.

Author's Rights

Registration

Although copyright arises when a work is fixed in a tangible medium, registration is needed to bring suit. Beyond that, prompt registration provides remedies that make a lawsuit affordable. Statutory damages ranging up to $100,000 (plus attorney fees) for willful infringement can be obtained only if published works are registered within three months of, or unpublished works are registered prior to, infringement.

Registration costs only $30.00, and a simple text form with basic instructions is available from the U.S. Copyright Office. Yet, it would be prohibitively expensive for prolific contributors to register individual messages other than in the context of an existing dispute.

Several items can often be registered as a single work. Yet, if a list owner wanted to register threaded list contents, for example, it is unclear how much time could be spanned by a single registration. Probably three months would be best, given that works should be registered within three months of publication. For authors, the situation is more ambiguous. Group registration of several periodical contributions by one author is possible, but combining e-mail posts would require liberal interpretation of "periodical." E-mail authors may also register "unpublished" collections, but that presents a different problem. Are messages to "public" lists "published" for all purposes, or might they be regarded as "unpublished" for registration purposes? Perhaps because no one has tried to register so far, the Copyright Office has posted no information on these issues.

Notice

Since 1978, copyright notice has not been required in the U.S. Yet, some kind of notice on individual messages (if blanket notice is not provided in, say, a welcome message) may be useful. That will rebut lingering notions that works published without notice can be used by others without restriction.

It is hard to see any advantages in formal notices. Something as straightforward as "Please do not forward this message without permission" should be legally adequate and most likely honored by those who see it.

Users' Risks—The Bottom Line

Copyright may forbid using others' text on the Internet without explicit or implied permission. Those who do so are ever more easily found with search engines, and copyright may forbid such uses without that permission. Still, because some uses are allowed, I am frequently asked whether particular uses of others' work is fair or otherwise legal. Many such questions are impossible to answer in general. Also, they usually ignore a very important point: Litigation is expensive. People concerned about, say, the nuances of fair use must not become so entangled in legal details that they forget that uses that generate income or interfere with a copyright holder's potential income dramatically increase the chance of suit.

The most compelling questions are whether a proposed use of another's work is likely to offend the owner and whether any expected benefits are worth the bother and possible cost of a resolving a dispute.

Thomas G. Field, Jr. is a founding member of the Franklin Pierce Law Center and has taught copyright and other intellectual property law for nearly 30 years. As an author, teacher, editor of a refereed journal published in hard copy and, belatedly, online, Field has had ample opportunity to see the problems he addresses here from each of several, often competing, perspectives. He says, "The trick is to read the writing on the wall before it turns into an epitaph." You may contact him by e-mail at tfield@fplc.edu..

Link from this article:

U.S. Copyright Office, http://lcweb.loc.gov/copyright/.