favor

[Anthony Atkielski]

Ted Mittelstaedt writes:

TM> Yes you are.  What do you think publishing is?

Publishing is the divulgation of the tangible expression of a work to a
party other than the author, as a general rule.  Under copyright law in
most jurisdictions, any publication must be explicitly authorized by the
author.  Exceptions are extremely rare and restrictive even in the more
liberal jurisdictions.

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

Except that it's not covered under fair use.  It requires an explicit
license.

TM> Yes you did.

No, you didn't.  I've very rarely encountered any type of forum that
explicitly requires me to grant rights for other forms of publication,
and unless I've done so, no such rights are granted.

TM> Laws on publishing are pretty clear.

Copyright law is the "law on publishing," and it is indeed clear: you
cannot publish copyrighted material without a license to do so.

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

A discussion forum isn't a public place in that sense, because it
imposes restrictions on access.  If you have to sign up, register,
subscribe or anything of the kind in order to post to the forum, it's
not public.  If anyone exerts any control on the content of the forum,
either through restrictions on access or direct editing of the content,
then the forum is not public--and additionally the person exerting
control assumes liability for the entire contents of the forum.

TM> Only if photographs are prohibited.

Even if pictures are not prohibited, you may not take pictures and
republish them.  That's an infringement of copyright.

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

No, most museums that prohibit photography do so to protect the works in
question (although such protection really isn't needed, as flash doesn't
damage paintings and such in the ways that people assume).  In some
cases, it is to prevent piracy by people who think that copyrights don't
protect photos in a museum.

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

Permission to take a photograph and permission to publish it are two
different rights.

TM> Yes, I am aware of that - IN THE UNITED STATES - laws differ in other
TM> countries though.

Other countries are often even more restrictive, if they have copyright
laws at all (some don't).

TM> As an author of course you ought to know that I am on the side of
TM> electronic publishing being considered the same as print publishing.

In that case, I'm surprised that you would assert that publishing in one
venue implicitly grants permission to publish in other venues.  This is
like saying that if I have your book (which, incidentally, I do), I can
make photocopies of it freely.  By selling your book to me, you made it
public and implicitly granted permission to make other copies of it that
are also accessible to the public ... right?

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

Copyright protection has nothing to do with the First Amendment.

TM> Until case law has defined e-publishing as under First Amendment
TM> rights it is in that grey area of could be interpreted one way
TM> and could be interpreted the other.  I am SQUARELY in favor of
TM> interpreting it under First Amendment rights which include Fair
TM> Use ...

The First Amendment and copyright law (including fair-use rights) are
completely unrelated.

The First Amendment protects the freedom of expression, and allows a
person to express his own opinion.  Copyright law protects the tangible
expression of creative effort, and allows a person to control the way
his own work is used by others.  Two completely different concepts.

TM> ... which is why I came down on poor Valerie like a ton of bricks,
TM> because what she is doing sets a dangerous precedent that has
TM> implications far, far beyond her piddly little website, or for
TM> that matter beyond our piddly mailing list.

It sounds like she is only asserting rights that she already has, and so
no dangerous precedent is necessary.  The current trend in IP law is
towards ever greater restrictions, thanks to the interests of large
corporate concerns who make all their money from such restrictions, and
so it might not be wise to disregard possible sources of infringement.

TM> Sooner or later there will of course be a court case on this.
TM> If you want to count yourself on the Dark Side then go ahead
TM> and keep yapping that posts aren't publishing.

That's not what I said.  Posting to a forum is one form of publishing.
Agreement to publication in that one form does _not_ imply agreement to
publication in other forms, though.

TM> I hope one day that you end up in North Korea or China where there
TM> are no First Amendment rights for any kind of publishing, book or
TM> paper or e-publishing. Then maybe you might understand how important
TM> it is to keep fighting for them.

I agree concerning the First Amendment, but it's totally irrelevant to
copyright law.  Copyright law doesn't prevent you from saying what you
wish; it prevents other people from using what you've created without
your permission.

TM> Therefore until a court says otherwise, Google has Fair Use
TM> rights.  Period.

Until a court says one way or another, the status of Google's use is
undetermined.  Even after a court says something, another court may
decide differently (fairly common in IP litigation).

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

Or by some court case.

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

Well, no.  If it were fair use, then authors would not be able to
require their removal.  Authors cannot prohibit fair use.  But it is
arguably not fair use.

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

But in that case, Valerie could then attack on the basis of libel, in
some cases (if the forged posts used her name and presented her in a
light that materially damaged her reputation).

TM> I wasn't talking about the archive manager of Google.  I was talking
TM> about the archive manager of the FreeBSD mailing list archives.  She
TM> granted the right to publish to them, not to Google.

Did she?  Did she take a positive and explicit action to indicate that
she agreed with archiving of her posts?

There might be some basis for claiming that she granted such permission
implicitly if the archives are available only to members of the list,
and if the archives are purged of her posts when she leaves the list.
In that case, virtually the only people with access to her posts are
people who also could see them as they passed on the list.  However, if
the archives can be searched by non-members of the list, her permission
is required.

If you find this too restrictive, imagine the case of a mailing list for
alcoholics or recovering drug addicts.  The legal context is the same.
Do you think they would implicitly grant permission for publication of
their confessions in archives searchable by anyone?

TM> She has a legitimate legal basis to demand Google remove it. She has
TM> extremely thin to no basis to demand that the FreeBSD mailing list
TM> remove it.

She can demand that the mailing list make its archives accessible only
to members of the list, and she can demand that her posts be removed
from the archive if she leaves the list. In other words, she must grant
permission for an extension of access to her posts beyond the
unavoidable access implicit in joining the list (access by other current
list members).

TM> You seem to think that it's a Good Thing to have people who run a
TM> mailing list and run archives of that mailing list to spend all their
TM> time digging though old files just because some idiot got ants in
TM> their pants, when there's no solid legal basis for it.

I think it's a good thing for people who run a mailing list to be
extremely careful about what they do, lest they be sued and closed down
for their carelessness.  There is indeed a solid legal basis for this,
and any list the size of this list should already be supported by
professional legal counsel to make sure that it doesn't do anything it
might later regret.

TM> Yet, you have the nerve to come here and use this forum - and it's
TM> archive. It boggles the mind.

I'm interested in FreeBSD, and this is the only available form of
support for the OS (which is perhaps the greatest drawback to using
FreeBSD, particularly in a corporate or mission-critical environment).

-- 
Anthony