Ted Mittelstaedt tedm at toybox.placo.com
Fri Feb 4 22:38:52 PST 2005

> -----Original Message-----
> From: owner-freebsd-questions at freebsd.org
> [mailto:owner-freebsd-questions at freebsd.org]On Behalf Of Anthony
> Atkielski
> Sent: Friday, February 04, 2005 7:40 PM
> To: freebsd-questions at freebsd.org
> Subject: Re: favor
> Ted Mittelstaedt writes:
> TM> If you post on a public forum, by implication you are giving that
> TM> forum permission to publish your copyrighted material.
> No, you're not.

Yes you are.  What do you think publishing is?  And quit shooting from
the hip before you read the entire post as I already explained that
that "any other type of publication external to the forum ... and that
includes mirroring on a Web site archive" is not covered under the
first publishing rights you granted to the public forum but rather under
Fair Use.

> No, you didn't, unless joining the forum required you to _explicitly_
> agree to these terms.

Yes you did.  Laws on publishing are pretty clear.  If you go carrying a
sign in a public place in order to get it captured on film - such as at
a political rally that Channel One news is filming - then later on switch
parties then you cannot go back to Channel One and demand they airbrush
sign out of their archives.  Why do you think that Channel One doesen't
getting consent signatures from every one of the 1000 people at the

> Nobody gives out these rights by posting to a forum.

Sorry but yes they do.

> If what you say were true, you could walk into a photography museum,
> take pictures of the photos, and publish those pictures.  In fact, this
> is normally an infringement of copyright.

Only if photographs are prohibited.  And in just about every museum
out there photographs ARE prohibited, as a matter of fact, simply for
this reason.

Even if a guard doesen't come running up to you, the facts are that
you have no permission to take the photograph, thus no right to
publish it.

Many museums do take a reserved approach to where they will not come
running up to you and take away your camera, but you still don't have
rights.  But I have been in a number of museums - the Guggenheim in
NY, the British Museum in London - where the guards there will indeed
come running up to you.  The British Museum in fact has "Photography
prohibited" placards next to EVERY one of their master paintings
just so as to make sure that THEY get the revenue from sale of images
of their paintings, not you.

HOWEVER there are PLENTY of places - such as the inside of many churches
for example - where photographs ARE permitted.  In those cases you are
perfectly permitted to take a picture of artwork in the church and
then go publish it all you want.  Of course everyone else is too so the
facts are that no magazine or periodical is going to buy your pictures
because if they want a picture too they can take them themselves.

> TM> The only thing that Valerie Andrewlevich, as a copyright holder
> TM> of her posts, can do is block 3rd parties such as Google or other
> TM> search engines from re-publishing her copyrighted material - ie:
> TM> her post - becase in her initial post back in 2003 she never gave
> TM> permission for Google to republish her material, and
> Google and other
> TM> search engines all republish under Fair Use doctrine.
> The applicability of fair use to Google's republication has not been
> established by jurisprudence, AFAIK.

Yes, I am aware of that - IN THE UNITED STATES - laws differ in other
countries though.  As an author of course you ought to know
that I am on the side of electronic publishing being considered the
same as print publishing.  I think that every sane person in the
country that really understands these issues is also.

Naturally the electronic content creators are continually trying
to get laws into place that consider e-publishing as some sort of
"special" publishing exempt from the First Amendment.  Is that what
YOU want?

Until case law has defined e-publishing as under First Amendment
rights it is in that grey area of could be interpreted one way
and could be interpreted the other.  I am SQUARELY in favor of
interpreting it under First Amendment rights which include Fair
Use, which is why I came down on poor Valerie like a ton of bricks,
because what she is doing sets a dangerous precedent that has
implications far, far beyond her piddly little website, or for
that matter beyond our piddly mailing list.

Sooner or later there will of course be a court case on this.
If you want to count yourself on the Dark Side then go ahead
and keep yapping that posts aren't publishing.  I hope one day
that you end up in North Korea or China where there are no
First Amendment rights for any kind of publishing, book or
paper or e-publishing.  Then maybe you might understand how
important it is to keep fighting for them.

Therefore until a court says otherwise, Google has Fair Use
rights.  Period.  You disagree - go find a court to back you up
and come back here when you do.

You might also consider that how the e-publishing community treats
this issue - as we are doing right now - is going to be considered
by that court case one day in the future.

> In any case, authors of individual posts can require that they be
> removed from the archive.

Yes, and this is because it's Fair Use.

> TM> And of course, all of this goes out the window if the use of the
> TM> copyright is for satire - as the courts have held that satire is
> TM> constitutionally protected, and that it's reasonable to assume that
> TM> a satirist would never be able to get permission from a copyright
> TM> holder to publish their work.
> It's difficult to imagine a legitimate satirical use of posts in most
> public forums.

You have a stunted imagination.  I do feel sorry for you, really.

One day you really ought to watch the Tonight Show and listen to
Jay Leno.  He has satired e-posts before on occassion.

> TM> Which means I can say Valerie sounds like her kids aren't keeping
> TM> her busy enough as she has so much time for looking at search
> TM> engines, followed by an excerpt of her original post, and I
> TM> have legal right to do it and she has no right to stop me, because
> TM> such a statement is satire and thus protected.
> That depends on the context in which it appears.  It may be defamatory.

Every person ever satired claims defamation or uses the FUD of
defamation to try to prevent further satirizing.  The courts
understand this issue well and very rarely rule on the side of the
victim of the satire.

And in this case all we have is a source IP address, Valerie has
made no actual statements here identifying who she is with any
degree of verifyability.  A defendant such as myself in such a
case would have a solid legal footing to argue that because forgeries
of a person's e-mail address and username are so simple, I have an
excellent expectation that Valerie in fact doesen't exist, or
the actual poster of the post isn't the real Valerie, a court
would then throw the entire thing out.

> TM> He is a She, unless Valerie has suddenly become a boy's name, and
> TM> she quite obviously shows a shocking lack of knowledge about how
> TM> much effort that she is asking the archive manager to go to, just
> TM> to satisfy her ego.
> The amount of effort required to cease or reverse an
> infringing activity
> is not a defense against copyright infringement.

I wasn't talking about the archive manager of Google.  I was talking
about the archive manager of the FreeBSD mailing list archives.  She
granted the right to publish to them, not to Google.  She has a
legitimate legal basis to demand Google remove it.  She has extremely
thin to no basis to demand that the FreeBSD mailing list remove it.

You seem to think that it's a Good Thing to have people who run a
mailing list and run archives of that mailing list to spend all their
time digging though old files just because some idiot got ants in
their pants, when there's no solid legal basis for it.  Yet, you have
the nerve to come here and use this forum - and it's archive.
It boggles the mind.


More information about the freebsd-questions mailing list