Anthony Atkielski atkielski.anthony at wanadoo.fr
Sat Feb 5 02:43:35 PST 2005

Mike Hauber writes:

MH> If I were to send you an email and a header (or signature) stated
MH> that you were not privy to the contents of the email, then you 
MH> could be in serious trouble.

No, because you explicitly sent me the e-mail.  If the confidential
contents were not your own, however, you could be in trouble for
revealing them to me.

MH> By sending the email to you, I am implying that you are allowed to
MH> view it.


MH> On a public forum (such as this) where there is growth, it is 
MH> logically implied (if I have any sense) that if I were to post to 
MH> this forum, it would not only be available on the mirrored lists, 
MH> but on the future mirroring lists as well.

No, that is not implied.  What is implied is that it will be available
on this forum, period.  Since mirroring and archiving and other forms of
additional publication are optional, posting to this forum alone does
not grant any implicit license to mirror or archive the post.  The only
way to get around this is to require that people agree to these other
forms of publication before allowing them to post to this forum.

MH> I would be foolish to assume otherwise.

No, that's not the way it works.  With copyright, you have to grant each
right explicitly.  There are only a handful of exceptions, and the ones
you describe are not among them.

There is a widespread and serious misconception that anything put on the
Net in any form somehow falls magically into the public domain, and/or
that any publication on the Net in any one form automatically implies a
license to publish on the Net in any other form.  But that's not how
copyright works, and the current trend is towards _more restrictive_
copyright law, not greater liberalization of implicit licensing.

MH> Why is that?  Google isn't reposting the information.

Yes, but if Google points to an _illegal_ copy of copyrighted material,
they risk liability if they refuse to remove the link, at least in
certain cases.  It has not been extensively tested, but linking to
illegal copies can be assimilated with direct infringement in some
jurisdictions, i.e., it can be looked upon as piracy.

Just linking to legal copies of material should be fine.

Whether or not Googles caching of pages constitutes an infringement or
not is still not certain, as it has not been extensively tested.

Unfortunately, along with all the legitimate uses of copyright, there
are some people and organizations trying to use copyright for things
like censorship, and this muddies the water considerably.  There's even
at least one organization that has perverted the spirit of copyright
into a spam-filtering device.

I don't personally believe that linking to infringing material is itself
an infringement, but it seems that increasingly jurisprudence does not
agree with me.

MH> I could understand if Microsoft had a server out there somewhere
MH> that had the source code for XP, that they wouldn't want Google
MH> pointing the way...

Actually, since the copy of the source code would be legal, they
probably couldn't stop Google from pointing to it.  They should be able
to stop Google from caching it.

MH> But that's different in that it was never released to a public forum
MH> in the first place (explicitly or otherwise).

I'm not sure what you mean by "public forum."  A server accessible from
the Internet without any special authorization mechanism is about as
public as anything can get, particularly if there is something else
linking to it that allows spiders to find it.

There is a distinction, however, when someone must take a positive,
explicit step to join a forum, such as selecting a userid and password,
or submitting a subscription request to a mailing list, and so on.  In
that case, the forum is no longer public, and the person
joining it may reasonably suppose that its contents will not be
public either.

If a band sets up shop on a street and starts to play music, they may
reasonably suppose that anyone might record the music, and there isn't
anything they can do about that.  However, if they give a concert in a
venue to which access is controlled in some way (such as through the
sale of tickets), they can reasonably suppose that their performance
cannot be recorded.

MH> Or is what you're referring to specific to Google's caching
MH> system?

Personally I consider the caching to be an infringement, albeit usually
not a grave one.  Just linking to pages does not appear to be any kind
of infringement to me, particularly since Google respects site
instructions not to index certain pages or sites (robot exclusion

MH> In that case, this email is absolutely copyrighted by me (along
MH> with my email address, my middle initial, Mother's maiden name, 
MH> SSN, and my recipie for coffee) ...

It was protected by copyright as soon as you wrote it.

An important question is whether or backquoting of e-mail to a public
list is an infringement.  I'd say no, provided that backquoting is
interspersed with new content and serves only as the basis for
commentary (as it does here).  Copying the entire message wholesale into
another venue is infringement, though, unless the author has explicitly
authorized this.

And, just to complicate things, some jurisdictions require a time limit
on licensing--which makes perpetual archiving an infringement, even if
the author agrees to it.  After a certain number of years, the rights
revert back to the author and the content must be removed or relicensed.

MH> And just the same, I don't think I'll jump on any bandwagons and sue
MH> Google for their great service, even if they do cash this page from
MH> a future freebsd-questions archive mirror. :)

Be careful what you say, as it may affect the results of any future
litigation in which you become involved (voluntarily or involuntarily).


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