"C" RIGHTS IN "E" MAIL
IVAN HOFFMAN, B.A., J.D.
Those quick, little missives we send off, seemingly
by the hundreds each day, belong only to us. We are the owners of the copyright
in our email.
Under the Copyright Law of the United States,
the creator of any writing is the author and copyright proprietor of his
or her creation, absent a valid agreement to the contrary. Under that law,
A work is ''created'' when it is
fixed in a copy or phonorecord for the first time;….
A work is ''fixed'' in a tangible
medium of expression when its embodiment in a copy or phonorecord, by or
under the authority of the author, is sufficiently permanent or stable
to permit it to be perceived, reproduced, or otherwise communicated for
a period of more than transitory duration.
Thus, the moment the writer creates the email
a copyright begins. And the United States statute provides the following
rights to literary works, which includes e-mail:
Subject to sections 107 through
120, the owner of copyright under this title has the exclusive rights to
do and to authorize any of the following:
(1) to reproduce the copyrighted
work in copies or phonorecords;
(2) to prepare derivative works
based upon the copyrighted work;
(3) to distribute copies or phonorecords
of the copyrighted work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
(4) in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and motion pictures and
other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a motion picture
or other audiovisual work, to display the copyrighted work publicly.
Therefor, making a copy of the email and reposting
it probably constitutes a potential infringement of the copyright belonging
to the author.
It is no longer required that there be affixed
to the writing any copyright notice at all. And the fact that the email
is "published" to another person, to a group of people, on a listserve,
news group or otherwise does not make the email available for reposting,
copying, or other use--not without the express and written consent of the
The Copyright Law provides this definition
''Publication'' is the distribution
of copies or phonorecords of a work to the public by sale or other transfer
of ownership, or by rental, lease, or lending. The offering to distribute
copies or phonorecords to a group of persons for purposes of further distribution,
public performance, or public display, constitutes publication. A public
performance or display of a work does not of itself constitute publication.
Therefor, one could even argue that although the
email has been posted, it has not been published in the copyright sense
of the word since there has only been a "display" of the work. But even
assuming that publication has taken place, no rights are necessarily lost
to the copyright owner.
Thus, it is wise, indeed mandatory, to seek
permission from the author of the email before you click on the "forward"
or "redirect" or other button on your email program.
It does not, however, spell the death of the
Net because copyright resides in the creator of a piece of email. It does,
however, mean that legal doctrine may have to be expanded to keep the law
electronically current. And while I cannot supply "answers" to all the
questions because the area is quite new, let me speculate by asking you
to consider just these issues as examples:
It is simply not possible to respond to all the
potential copyright issues since this is, to a large extent, frontier territory.
Perhaps new theories may have to be developed in order to deal with the
many new questions that arise from the new technology.
When we post, we probably impliedly consent and
it is likely "fair use" to have our posting used in reply to us. Someone
probably has our consent to use portions or even the entirety of our posting
in order that they may reply to us. But when we post "privately" do we
impliedly consent to have our posting put up on a list or news group? In
other words, if we send an email to a person for their private reading,
do we agree without expressly agreeing that the recipient may then take
our private posting and broadcast it to a larger audience?
It would appear that the answer to 1. is "maybe
not." The doctrine of implied consent should probably be used only when
the sender should likely and reasonably have foreseen that his or her posting
would be reposted in this manner. Should we consider whether or not the
larger posting went to a group with the same or at least similar interests
as that of the sender and recipient? What if both were members of a news
group or a list? What if they were not?
Assuming that a reposting in some fashion is impermissible,
exactly what are the actual rights that have been infringed upon? Certainly
one could argue that it was an infringement of the copyright in the original
posting. Is it, however, also an invasion of the sender's privacy? But
is the sender in the public eye thereby making the standard of proof greater
in order to prove the claim? What if the posting were made available originally
to the group or list as a whole? Does this make the poster a public person
for the purposes of invasion of privacy? And can the posting be used in
order that it be commented upon as in the statutory exceptions called "fair
use" for purposes of commentary? And can the posting be "flamed" and claim
exemption as parody? And how much of the posting is permissible under this
doctrine of "fair use" even if it is not for commentary or parody?
And what of the "innocent infringer" or "invader"
of our privacy who accidentally clicks the "send" button before changing
the "send to" address? We have all done this. Must there be some exceptions
to the "strict liability" rules relative to copyright infringement? The
damages currently awarded vary depending upon the state of mind of the
infringer. Perhaps the underlying liability should be changed as well.
And what about the contract relationship between
a sysop and a member that says that the sysop can edit anything the sysop
decides is inappropriate? By doing so, is the sysop infringing on the underlying
copyright? Where does the contract law overtake the copyright law? Copyrights
can be transferred but if the transfer is of exclusive rights, the transfer
must be in writing and signed by the transferor. However, can a sysop claim
a non-exclusive transfer of your copyrights in your email because such
transfers can be oral?
And what about chat programs that allow the user
to save copies of the conversation? Given the sometimes raunchy nature
of the chat, this could certainly lead to issues about invasion of privacy
as well as multiple copyright infringements. Most laws require that consent
be obtained by all participants of a telephone conversation before it can
be recorded. Shouldn't these sorts of laws be applicable in a chat program
And if you are able to use someone's posting and
then you add to the posting, do you become a "joint author" entitled to
copyright protection? The answer would seem not since your contribution
to the original posting is able to be segregated and it was not the intention
of either party to make the two contributions indistinguishable. But even
if you are not a joint author, are you entitled to some measure of protection?
Is this a collective work?
There are obviously more questions than apparent
answers at this point in the state of the email issue. The questions I
raise in this article are only some of what may pop up in the coming period.
What is important however, is that we have a frame of reference for discussing
and resolving these open questions. The current law seems adequate to handle
the issues. What we need is the wisdom to apply the law with regard for
practicality and in a way that reflects the freedom that email provides
to us all.
© 1996 Ivan Hoffman
This article is not intended as a substitute
for legal advice. The specific facts that apply to your matter may make
the outcome different than would be anticipated by you. You should consult
with an attorney familiar with the issues and the laws.
No portion of this article may be copied, retransmitted,
reposted, duplicated or otherwise used without the express written approval
of the author.
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