Ted Mittelstaedt tedm at toybox.placo.com
Fri Feb 4 23:10:55 PST 2005

> -----Original Message-----
> From: owner-freebsd-questions at freebsd.org
> [mailto:owner-freebsd-questions at freebsd.org]On Behalf Of Mike Hauber
> Sent: Friday, February 04, 2005 9:31 PM
> To: freebsd-questions at freebsd.org
> Subject: Re: favor
> On Friday 04 February 2005 11:52 pm, Anthony Atkielski wrote:
> > Mike Hauber writes:
> >
> > MH> Not wanting to jump into this, because I think the whole of
> > the MH> argument is ridiculous...  But, in a nutshell...
> > Aren't you MH> trying to make the same argument that SCO is
> > trying to make?
> >
> > I'm not familiar with SCO's argument. The principles of
> > copyright have existed for a long time. People seem to think
> > that the Internet is somehow a "copyright-free" zone, where
> > anyone can do anything, but that just isn't the case, as
> > accumulating jurisprudence proves.
> >
> > MH> (all due respect, of course)  I just don't see the validity
> > of "I MH> don't care if the code was legally released to the
> > open source MH> communities eons ago!  I don't care how much
> > time and effort has MH> been spent building on it.  It's mine
> > and I want it back!"
> >
> > Explicitly releasing something and "implicitly" releasing it
> > are two different things.  In general, one never implicitly
> > relinquishes a copyright.  In some domains of IP, this happens:
> > the failure to actively defend a trademark can cause it to be
> > lost, for example.  But copyrights remain, even if nothing is
> > done to defend them, and copyrighted material is never
> > implicitly licensed to anyone.
> >
> If I were to send you an email and a header (or signature) stated
> that you were not privy to the contents of the email, then you
> could be in serious trouble.  By sending the email to you, I am
> implying that you are allowed to view it.


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

Mike, this is where the crotch of the matter is.

Anthony is from the camp of people out there who want to have
the law make the rediculous assumption that ALL posts on public
forums are absolutely positively verifyable.

The case law he's talking about is arising from incidents, mainly
right now on stock trading forums and such, where a poster has
repeatedly posted verifyable information of who he is to the
point that everyone trusts that postings made that contain his
'stamps' are indeed from him - the poster then one day posts some
copyrighted trade secret that causes a stock run or some such -
someone loses hundreds if not thousands of dollars - then next
thing you know the lawyers are in there.

However if an incident occurred where one day a post appeared on
one of these stock forums from a poster that nobody has ever heard
of before, that was attributed to Mr X, that contained copyrighted
trade secrets of Mr Y, then the poster never appeared again, there's
extremely little chance that Mr. Y could successfully sue Mr X if
Mr. X were to claim he'd never heard of such a forum or of Mr. Y

Of course such a post probably wouldn't be believed by most of the
investors on the forum, so it's doubtful that it would have any
effect.  Now you see the dilemma of Mr. X in these situations -
to cause trouble, he has to implicate himself beyond a reasonable
doubt, - which makes it easy to sue him and win.

Thank God that so far in this country the courts aren't run by
people as stupid as to not be able to distinguish the facts of
these matters.

Anthony does have a few things right but he's stirring in
a lot of wishful thinking with a few facts. Yes, everything
is copyrighted.  Yes, if I make a post I'm not giving my copyright
up to the forum.  But NO, that doesen't mean the forum has no
right to publish.  That is why there are such things as a
"right to publish" and it is different then the copyright.

Also keep in mind that a LOT of the copyright activity we are
seeing is over the issue of software copyrights - because way
back a long time ago there was no body of law available to
protect against software piracy, so the software vendors decided
to use the fiction that their software was the same thing as a
book or painting, thus making it elegible for copyright status.

However most folks in the business realize the problems of this
and the software industry is working on creating an entirely
separate legal animal called a "software license" that contains
some good bits out of copyright case law, and some good bits
out of product patent law.  The difficulty is that while copyright
has the Berne convention that is globally effective, software
patenting and licensing has no such global agreements.  So we
are going to see that tie in with software and copyrights for
a good long time yet, maybe another century even.  Just don't
get the idea that some of the stuff that has come out of that
effort - like the DMCA - are going to get applied to copyrights
on speech and the press (despite the fact that the authors of
the DMCA would probably love this)

In any case, be also careful with the mirrors.  Currently a
mirror has no legal status other than that of a fair use.
A poster like Valerie has complete legal basis to demand a
mirror remove a post by revoking their right of fair use.
Yet another quagmire to get into as you can imagine.

> > MH> Don't get me wrong.  I've made public posts that I look
> > back and MH> cringe on because I know it's still out there
> > somewhere.  Hell... MH> Maybe there's only two of us.  That's
> > life, and we live it MH> anyway.
> >
> > In many cases, you can force those posts to be removed from
> > venues to which you did not originally post them and for which
> > you never reached any type of licensing agreement.  People
> > regularly do this in the case of Google, for example.
> Why is that?  Google isn't reposting the information.

Not true, they are reposting it.  Even if all they are doing is
posting 1 line plus a little context, that is a repost, ie: a
publish, and it's only allowable under Fair Use, and Fair Use
rights only exist if the copyright holder doesen't say they
don't exist.

> >
> > MH> Fact is, the cats out of the bag, and I have yet to meet a
> > cat MH> that likes bags.  :)
> >
> > The cat is being pushed back into the bag rather rapidly. The
> > legal profession was slow to apply the law to the Internet, but
> > it is learning fast. The fact that so few people have chosen to
> > enforce their copyrights doesn't mean that these copyrights
> > don't exist or cannot be enforced. And woe to those who feel
> > that they can flagrantly infringe with impunity; eventually
> > they may come across someone who doesn't feel the same way and
> > has the will and the resources to sue.
> In that case, this email is absolutely copyrighted by me (along
> with my email address, my middle initial, Mother's maiden name,
> SSN, and my recipie for coffee)...  And just the same, I don't
> think I'll jump on any bandwagons and sue Google for their great
> service, even if they do cash this page from a future
> freebsd-questions archive mirror.  :)

Under current law you don't have to say that your post is copyrighted,
it is when you post it, automatically.  What Anthony and his ilk want
is for you to have to sign a form telling the FreeBSD mailing list that
they have permission to publish it - for each individual post of course,
and for each time it's accessed - which would in fact if this ever
pretty much destroy the usability of public mailing lists.

Legally if such a law ever happened I would have the legal right to
have the FreeBSD mailing list turn over it's list of e-mail addresses
so that I could individually give consent for FreeBSD's mailing list to
e-mail to each and every one of those e-mail addresses.  That is how
rediculous this could get, and unless the courts are ever stuffed with
moron judges, it will never happen.


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