Computerworld magazine stole my USENET posting

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Gregory Aharonian

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May 6, 1993, 1:01:48 AM5/6/93
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Here's a twist in the copyright debate. A few months ago I posted
something to comp.lang.ada which referred to an article in Computerworld.
The issued involved defense software policy, which over many postings I
have been criticizing as wasting tax dollars, encouraging contractor
hypocrisy and destroying the acceptance of Ada.

Anyways, a few weeks later, my USENET posting from comp.lang.ada
appeared as a Letter to the Editor in Computerworld, without my permission
or even foreknowledge.

Maybe someone sent it to them, saying it was from me, or maybe they
just found it and ran it in Computerworld.

I sent a protest letter to the editor of Computerworld by email
(which the probably won't publish), but haven't heard back from them.

Any suggestions on how I should handle this moral and ethical outrageous
act :-)

Greg Aharonian{
--
**************************************************************************
Greg Aharonian
Source Translation & Optimiztion
P.O. Box 404, Belmont, MA 02178

dsro...@biivax.dp.beckman.com

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May 6, 1993, 12:18:22 PM5/6/93
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In article <SRCTRAN.93...@world.std.com>, src...@world.std.com (Gregory Aharonian) writes:
[...]

> Anyways, a few weeks later, my USENET posting from comp.lang.ada
> appeared as a Letter to the Editor in Computerworld, without my permission
> or even foreknowledge.
>[...]
> Any suggestions on how I should handle this moral and ethical outrageous
> act :-)

I would say the best way to handle this is an attitude adjustment on your part
since there was NOTHING WRONG with what was done. USENET is all in the public
domain (provided someone doesn't place something proprietary there illegally,
that is) and there isn't a THING you can do to prevent it's further
dissemination, despite the screams about "copyright" people keep making on
USENET.

Why should you be bothered by this anyway? If you feel justified in whatever
opinion you expressed, I should think you'd be happy to see it spread to more
forums. You should be flattered someone thought enough of your posting to post
it to another forum.

Now, if it was attributed to someone else, you might have a legitimate gripe
:-)
--
Don Roberts Internet: dsro...@beckman.com
Beckman Instruments, Inc. Phone: 714/961-3029
2500 Harbor Bl. Mailstop X-12 FAX: 714/961-3351
Fullerton, CA 92634 Disclaimer: Blame me, not Beckman.
"Mr. President, you'd better put more security agents on Mrs. Clinton.
if something happened to her you might have to run the country"
Sen. Strom Thurmond

Arthur Rubin

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May 6, 1993, 3:10:32 PM5/6/93
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In <1993May6.0...@biivax.dp.beckman.com> dsro...@biivax.dp.beckman.com writes:

>In article <SRCTRAN.93...@world.std.com>, src...@world.std.com (Gregory Aharonian) writes:
>[...]
>> Anyways, a few weeks later, my USENET posting from comp.lang.ada
>> appeared as a Letter to the Editor in Computerworld, without my permission
>> or even foreknowledge.
>>[...]
>> Any suggestions on how I should handle this moral and ethical outrageous
>> act :-)

>I would say the best way to handle this is an attitude adjustment on your part
>since there was NOTHING WRONG with what was done. USENET is all in the public
>domain (provided someone doesn't place something proprietary there illegally,
>that is) and there isn't a THING you can do to prevent it's further
>dissemination, despite the screams about "copyright" people keep making on
>USENET.

Sorry, Don, you're wrong (in part) this time. His article is copyrighted.
The only question is whether, considering the many media USENET consists
of, is this either "fair use" or is Computerworld part of USENET? (Or that
implied redistribution request/demand makes unlimited unedited distribution
allowed.) Certainly, if it was edited, even to the point of moving a
comma, he would be correct.

>Why should you be bothered by this anyway? If you feel justified in whatever
>opinion you expressed, I should think you'd be happy to see it spread to more
>forums. You should be flattered someone thought enough of your posting to post
>it to another forum.

Now, that I agree with.
--
Arthur L. Rubin: a_r...@dsg4.dse.beckman.com (work) Beckman Instruments/Brea
216-...@mcimail.com 7070...@compuserve.com art...@pnet01.cts.com (personal)
My opinions are my own, and do not represent those of my employer.

Paul E. Hoffman

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May 6, 1993, 3:35:55 PM5/6/93
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dsro...@biivax.dp.beckman.com writes:

>I would say the best way to handle this is an attitude adjustment on your part
>since there was NOTHING WRONG with what was done. USENET is all in the public
>domain (provided someone doesn't place something proprietary there illegally,
>that is) and there isn't a THING you can do to prevent it's further
>dissemination, despite the screams about "copyright" people keep making on
>USENET.

> Disclaimer: Blame me, not Beckman.

OK: I blame you for not having the faintest idea of what you are saying.
Your statement about "public domain" has absolutely no validity whatsoever.
If Gregory wrote something and posted it on USENET, he still owns all the
copyrights to what he wrote. Unless you can show a single law or case that
shows otherwise, I'd strongly suggest that you stop posting such drivel and
making it seem like you know something about the relevant law.

That being said, Gregory could possibly sue ComputerWorld for infringement
of his copyright, but that would be silly. I would just let it slide after
sending them a letter of objection. You still own the copyright of what you
posted, FWIW.

>>Paul Hoffman

P.S. I am not a lawyer, but I know how to read books about the law.
--

________________________________________
| Paul E. Hoffman, phof...@netcom.com |
| Why quote someone else? |
----------------------------------------

dsro...@biivax.dp.beckman.com

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May 6, 1993, 5:23:30 PM5/6/93
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In article <phoffmanC...@netcom.com>, phof...@netcom.com (Paul E. Hoffman) writes:
>> Disclaimer: Blame me, not Beckman.
>
> OK: I blame you for not having the faintest idea of what you are saying.

My my. Did we get up on the wrong side of the bed this morning?

> Your statement about "public domain" has absolutely no validity whatsoever.

Thank you for your learned opinion, counselor

> If Gregory wrote something and posted it on USENET, he still owns all the
> copyrights to what he wrote. Unless you can show a single law or case that
> shows otherwise, I'd strongly suggest that you stop posting such drivel and
> making it seem like you know something about the relevant law.

Ah, one of the fastest examples of falling back on the NETNEWS standard of how
to avoid having an intelligent discussion! Immediately turn to the "OKay, show
us your sources" argument. And throw in that Ad Hominum attack while you're
at it, too. I suppose your followup to this will point out my spelling and
grammatical mistakes as well :-) At least Arthur disagreed intelligently...


>
> That being said, Gregory could possibly sue ComputerWorld for infringement
> of his copyright, but that would be silly. I would just let it slide after
> sending them a letter of objection. You still own the copyright of what you
> posted, FWIW.

Oh, learned one, why would it be silly? No damages, perhaps? Maybe a
meaningless copyright? Hmm, nice of you to make my argument for me. Please,
don't bother answering, I'm in no mood for a debate today...

>
>>>Paul Hoffman
>
> P.S. I am not a lawyer, but I know how to read books about the law.

Oh, what arrogance. Not a lawyer but claiming to be able to understand a
technical subject without training. I suppose you feel just any lay person
without a math background can pick up a book about calculus and
understand that too?

Paul, my distinguished opponent, your OPINION is really no better than mine :-)
I, however, shall debate this no further, you are welcome to make whatever
rebuttal you feel is appropriate, you'll get no further response from me.

Mike Godwin

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May 6, 1993, 10:59:21 PM5/6/93
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>Oh, what arrogance. Not a lawyer but claiming to be able to understand a
>technical subject without training. I suppose you feel just any lay person
>without a math background can pick up a book about calculus and
>understand that too?
>
>Paul, my distinguished opponent, your OPINION is really no better than mine :-)
>I, however, shall debate this no further, you are welcome to make whatever
>rebuttal you feel is appropriate, you'll get no further response from me.

I'm a lawyer. Your comment about the "public domain" status of netnews
postings is incorrect. Netnews postings are copyrighted under the Berne
Convention.


--Mike


--
Mike Godwin, | Ariel Rose Godwin
mnem...@eff.org| Born 4-15-93 at 4:34 pm in Cambridge
(617) 576-4510 | 7 pounds, 1.5 ounces, 19.75 inches long
EFF, Cambridge | A new citizen of the Electronic Frontier

David Swarbrick

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May 7, 1993, 3:01:05 AM5/7/93
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>
>I'm a lawyer. Your comment about the "public domain" status of netnews
>postings is incorrect. Netnews postings are copyrighted under the Berne
>Convention.
>

Yes ... but.
(I am sure this is a well travelled argument)
The nature of this medium, and in the context of a 'newsgroup' on USENET
must include an implied licence for the most extensive and frequent
reproduction of the letter. In effect a news item posted here is donated for
virtually infinite reproduction.

It might be argued that that licence somehow stops at the door of USENET,
that reproduction in a different form in a different forum is not within
that licence, but I would not be convinced

The retained rights for fair dealing and so on are important and to be
respected, but I think it is sensible for anyone posting material within
this medium to assume that once gone, it is gone. Complaint after the event,
except for misquotation or non attribution, is not particularly useful.

>--
>Mike Godwin, | Ariel Rose Godwin

>mnem...@eff.org| Born 4-15-93 at 4:34 pm in Cambridge (<--- Congrats)

--
David Swarbrick | Just Mooting UK Law BBS
Brighouse West Yorkshire HD6 2AG | +44 (0)484 401139 (24 hrs <=v32.bis)
| sw...@swarb.demon.co.uk

Paul E. Hoffman

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May 8, 1993, 11:15:38 PM5/8/93
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In the US, once you write something, you own it and you own the right to
limit all derivative works. Thus, it is a somewhat safe assumption that by
posting something on USENET, you are giving an implied license for anyone on
USENET (including the machines that hang all this together) to reproduce
your work on USENET. However, I don't believe that there is any implied
license beyond that. Given that the use in question was a for-profit
magazine that needs editorial to fill up its non-advertising space, they
profited financially from the letter. It would be very hard for them to
argue that they had an implied license to do that (in this country, at
least).

Although it has not been tested in the courts (I believe), posting something
on USENET is somewhat like broadcasting it on the airwaves. You give people
an implied license to use the work for the generally accepted use, and
that's all.

What are the laws/cases in the UK? Significantly different?

>>Paul Hoffman

Bruce Hayden

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May 11, 1993, 12:54:47 AM5/11/93
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da...@swarb.demon.co.uk (David Swarbrick) writes:

>>
>>I'm a lawyer. Your comment about the "public domain" status of netnews
>>postings is incorrect. Netnews postings are copyrighted under the Berne
>>Convention.
>>
>Yes ... but.
>(I am sure this is a well travelled argument)
>The nature of this medium, and in the context of a 'newsgroup' on USENET
>must include an implied licence for the most extensive and frequent
>reproduction of the letter. In effect a news item posted here is donated for
>virtually infinite reproduction.

>It might be argued that that licence somehow stops at the door of USENET,
>that reproduction in a different form in a different forum is not within
>that licence, but I would not be convinced

But why not? What you have to look at are the reasonable expectations
of the average USENET poster. I would argue that the average poster
does not expect his work to be published in Computerworld. But that
of course is one person's opinion.

I think there is also significant precedent to support the premise
that publication in one media does not imply right to publish in
another.

>The retained rights for fair dealing and so on are important and to be
>respected, but I think it is sensible for anyone posting material within
>this medium to assume that once gone, it is gone. Complaint after the event,
>except for misquotation or non attribution, is not particularly useful.

I am not sure what you mean by the retained right of fair dealing.
You seem to be arguing that publication on USENET implies republication
rights elsewhere.

What are you suggesting here? Are you saying that there is no way that
you can keep things out of Computerworld?

Bruce E. Hayden
(303) 758-8400
bha...@csn.org

Bruce Hayden

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May 11, 1993, 12:52:46 AM5/11/93
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mnem...@eff.org (Mike Godwin) writes:

>>Oh, what arrogance. Not a lawyer but claiming to be able to understand a
>>technical subject without training. I suppose you feel just any lay person
>>without a math background can pick up a book about calculus and
>>understand that too?
>>
>>Paul, my distinguished opponent, your OPINION is really no better than mine :-)
>>I, however, shall debate this no further, you are welcome to make whatever
>>rebuttal you feel is appropriate, you'll get no further response from me.

>I'm a lawyer. Your comment about the "public domain" status of netnews
>postings is incorrect. Netnews postings are copyrighted under the Berne
>Convention.


>--Mike

As usual, Mike is right on. I do this for a living and concur
100% with Mike and Paul.

sohl,william h

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May 11, 1993, 10:08:21 AM5/11/93
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In article <bhayden.737096087@teal> bha...@teal.csn.org (Bruce Hayden) writes:
>da...@swarb.demon.co.uk (David Swarbrick) writes:
>
>>In article <1993May7.0...@eff.org> mnem...@eff.org writes:
>>The nature of this medium, and in the context of a 'newsgroup' on USENET
>>must include an implied licence for the most extensive and frequent
>>reproduction of the letter. In effect a news item posted here is donated for
>>virtually infinite reproduction.
>>It might be argued that that licence somehow stops at the door of USENET,
>>that reproduction in a different form in a different forum is not within
>>that licence, but I would not be convinced
>
>But why not? What you have to look at are the reasonable expectations
>of the average USENET poster. I would argue that the average poster
>does not expect his work to be published in Computerworld. But that
>of course is one person's opinion.

As this discussion once again pops up, I think it is important to realize
the constantly changing nature of what can be viewed as "reasonable


expectations of the average USENET poster.

By that measurement, I'd suggest that the availability of USENET
postings in a different format, CD ROM, is already being done and
is certainly well known within this and many other newsgroups. That
issue was kicked around quite a bit, with nothing decided in any
definable (case law) sense. Obviously there are two schools of
thought on the CD ROM issue and until at least one case becomes
a precedent, the makers/sellers of the USENET CD ROM versions
continue to offer what they do. Likewise, here's a case of
"republication" into a well known magazine, Computerworld. If
that begins to happen more and becomes known to USENET posters, then
that too will fall into the realm of "reasonable expectation..."

It also seems to me, regardless of the "letter of the copyright
laws" that may be involved, that posting to USENET is as good as
giving away all rights to control who has or doesn't have a copy
of your posting in almost any media. Why, because there is NOTHING
anyone can do to stop distribution of a post once it is sent into
the network. The post gets reproduced thousands of times (these
days it may be that a post is reproduced millions of times), it gets
printed into hard copy by anyone, it gets stored for various
periods automatically by thousands of systems and the computer
hard drives of individual USENET readers, it gets reproduced into
CD Rom versions, it may get stored on a long term basis in many
FTP areas of some systems, etc.

I think too, the very nature
of almost all USENET postings as relatively short, commentary
and/or opinion posts/replies gives rise to a "fair use" situation
for almost any post which is reproduced, commented on, etc.
Certainly if someone posts a short story and it ends up in a book,
I'd suggest that as a copyright violation. But, if John Doe posts
comments on subject XYZ, the reproduction of
John Doe's opinion (unless it was an extensive article) would
likely be a fair use of John Doe's comment.

>I think there is also significant precedent to support the premise
>that publication in one media does not imply right to publish in
>another.

Yet most of us are fully aware of the CD ROM publications and no one has
stopped those.

Anyway, I do not dispute that what an individual posts is copyrighted
AND that the copyright is owned by the poster (unless the poster posts
something s/he didn't have a copyright to in the first place). I do
believe, however, that the posting to USENET is essentially granting
permission to reproduce that post by anyone almost anywhere. I strongly
believe that to be true for all electronic media, and it will be a matter
of time as to how far such reproduction in other non-electronic media
may take things.

Standard Disclaimer- Any opinions, etc. are mine and NOT my employer's.
-----------------------------------------------------------------------
Bill Sohl (K2UNK) BELLCORE (Bell Communications Research, Inc.)
Morristown, NJ email via UUCP bcr!cc!whs70
201-829-2879 Weekdays email via Internet wh...@cc.bellcore.com

Paul E. Hoffman

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May 11, 1993, 11:18:55 AM5/11/93
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I guess I'm a bit behind, but I'm ***not*** "fully aware of the CD ROM
publications" you speak of. I've heard of a few CD-ROMs that reproduced
selected FAQs with the permissions of the authors only. Are there
commercially-available CD-ROMs that contain USENET postings (potentially
mine!) that did not get permissions from the authors?

sohl,william h

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May 11, 1993, 11:55:45 AM5/11/93
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In article <phoffmanC...@netcom.com> phof...@netcom.com (Paul E. Hoffman) writes:
>I guess I'm a bit behind, but I'm ***not*** "fully aware of the CD ROM
>publications" you speak of. I've heard of a few CD-ROMs that reproduced
>selected FAQs with the permissions of the authors only. Are there
>commercially-available CD-ROMs that contain USENET postings (potentially
>mine!) that did not get permissions from the authors?
>>>Paul Hoffman

My understanding at this time is that there are vendors who "publish"
entire USENET newsgroups (all the postings they receive) on CD ROM.
Exactly who they are and/or how to obtain them I don't know exactly, but
the subject has been discussed at length in the past. Maybe another
reader has specific info. It is also my understanding that the
NO permission is requested from any poster to allow his/her posting
to be included in the CD ROM anthology publication. Certainly the
practical aspects of requesting such permission from ALL posters would
be a large undertaking.


Barry Margolin

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May 11, 1993, 3:10:29 PM5/11/93
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In article <1993May11.1...@porthos.cc.bellcore.com> wh...@dancer.cc.bellcore.com (sohl,william h) writes:
>It also seems to me, regardless of the "letter of the copyright
>laws" that may be involved, that posting to USENET is as good as
>giving away all rights to control who has or doesn't have a copy
>of your posting in almost any media. Why, because there is NOTHING
>anyone can do to stop distribution of a post once it is sent into
>the network. The post gets reproduced thousands of times (these
>days it may be that a post is reproduced millions of times), it gets
>printed into hard copy by anyone, it gets stored for various
>periods automatically by thousands of systems and the computer
>hard drives of individual USENET readers, it gets reproduced into
>CD Rom versions, it may get stored on a long term basis in many
>FTP areas of some systems, etc.

One distinction I haven't seen mentioned much in these discussions (which
come up every few months) is the part the USENET "collection" plays. When
I post something I expect it to be distributed as part of the general
USENET collection. This distribution process is automatic, so one can
hardly expect individual preferences to be accomodated (unless we develop
conventions, such as header lines, which can be used to indicate these
preferences). If someone is archiving entire newsgroups to FTP areas or
CD-ROM, that's part of this distribution process, and I believe we consent
to it implicitly by posting.

However, if an article of mine is singled out for republication, that's
outside the normal USENET distribution process, and different
considerations apply.

I didn't see the original posting, so I don't know how the posting was
incorporated into ComputerWorld. If they have a column that regularly
publishes *all* the recent postings in a newsgroup, I'd say that this
newspaper has effectively become part of USENET, just like the CD-ROM
archives and FTP sites. But if they have editors who pick and choose
articles to reprint, or the posting was reprinted just for one article,
then I think they should get permission from the author.

I'm not sure this requirement would hold up in court (the precise legal
status of USENET postings has so far not been established), but I think
it's the right thing to do.

On a related note, what about non-public reproduction? I frequently see
USENET postings that I believe would be of interest to other people in my
department or company, and forward the post to appropriate internal mailing
lists. I know others in my company do it as well, and I'm sure it goes on
all over the place. I can't imagine anyone objecting to this use, but I
can see an inconsistency between this view and what I said above.
--
Barry Margolin
System Manager, Thinking Machines Corp.

bar...@think.com {uunet,harvard}!think!barmar

David Swarbrick

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May 11, 1993, 2:28:53 PM5/11/93
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In article <bhayden.737096087@teal> bha...@teal.csn.org writes:
>da...@swarb.demon.co.uk (David Swarbrick) writes:

Bruce, (I find it difficult enough to work out where these articles start
never mind predict where they will end up!)

>>In article <1993May7.0...@eff.org> mnem...@eff.org writes:
>>>I'm a lawyer. Your comment about the "public domain" status of netnews
>>>postings is incorrect. Netnews postings are copyrighted under the Berne
>>>Convention.
>

>>It might be argued that that licence somehow stops at the door of USENET,
>>that reproduction in a different form in a different forum is not within
>>that licence, but I would not be convinced
>
>But why not? What you have to look at are the reasonable expectations
>of the average USENET poster. I would argue that the average poster
>does not expect his work to be published in Computerworld. But that
>of course is one person's opinion.

You have copyright in your letter. You grant a licence to republish it
for ever and a day time after time after time on millions of machines about the
world, on hard disks in archives, on paper, each time it is looked at on
a screen, to be requoted in part with no real attempt to acknowledge the
original source (look at the '>>' signs above - whose is what>). All this for
no reward. You must be thought to have donated any value in your post
to the Usenet community.

All these are utterly strange to copyright. It begins to squirm most
uncomfortably under the strain.

You then say there is a limit - perhaps at the door of Usenet - but where
is the door. You do nothing to say where you think the limit might be
when you post your article (it isn't accompanied by a five page licence)
Your reasonable expectations have already diverged substantially from
mine and it appears from those of others in this group.

Courts need certainty. It starts from the assumption that you give
no rights away. Then, silly billy, you give the most open and indeterminate
licence one might imagine. The court can only say that in this case the medium
controls the copyright message - you have given it away. To then start
reigning it all back in is a hopeless and self defeating act.

The net is a free roaming spirit. Its glorious value is that it is a
proof of the virtue of mutual self help. The occasional bit of free loading
by a commercial organisation is not a threat. The narrow chivvying 'you
can have it, but not you (because you can only afford a magazine, not a
Net account) is a denial of that spirit.

That is being unfair to you, because you haven't displayed that attitude,
but if you had, it wouldn't be.

>I am not sure what you mean by the retained right of fair dealing.

Fair Dealing may be a UK idea.

>You seem to be arguing that publication on USENET implies republication
>rights elsewhere.

I am arguing that the edges of USENET are too ragged to be capable of
legally useful definition (I am sure there is a latin phrase 'post hoc
propter hoc' which if I could remember what it means might be
appropriate)

>What are you suggesting here? Are you saying that there is no way that
>you can keep things out of Computerworld?

On a small scale, no. On a large scale, only by imposing such silly rules
within UseNet as to destroy Usenet.

--
David Swarbrick | Just Mooting UK Law BBS

Brighouse West Yorkshire HD6 2AG | +44 (0)484 401139 (24 hrs <=v.32bis)
| sw...@swarb.demon.co.uk

Bruce Hayden

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May 13, 1993, 1:44:38 AM5/13/93
to
da...@swarb.demon.co.uk (David Swarbrick) writes:

Yes, I think that that is a good way of phrasing it -
that the implied license ends at the door of Usenet.

I think that the line I would draw is the transition from
electronic media to print media, especially in a printed periodical.

You do have a point though - what are the reasonable expectations
of the averege (reasonable?) poster? I know what my are. But then
I really don't care if I get quoted in Computerworld. But I understand
why some might not mind being posted on millions of machines, but
not be published in Computerworld. For example, they may know that
their boss doesn't access the Internet, but does read Computerworld
(and he may be saying something not very nice).

>Courts need certainty. It starts from the assumption that you give
>no rights away. Then, silly billy, you give the most open and indeterminate
>licence one might imagine. The court can only say that in this case the medium
>controls the copyright message - you have given it away. To then start
>reigning it all back in is a hopeless and self defeating act.

>The net is a free roaming spirit. Its glorious value is that it is a
>proof of the virtue of mutual self help. The occasional bit of free loading
>by a commercial organisation is not a threat. The narrow chivvying 'you
>can have it, but not you (because you can only afford a magazine, not a
>Net account) is a denial of that spirit.

>That is being unfair to you, because you haven't displayed that attitude,
>but if you had, it wouldn't be.

>>I am not sure what you mean by the retained right of fair dealing.
>Fair Dealing may be a UK idea.

>>You seem to be arguing that publication on USENET implies republication
>>rights elsewhere.

>I am arguing that the edges of USENET are too ragged to be capable of
>legally useful definition (I am sure there is a latin phrase 'post hoc
>propter hoc' which if I could remember what it means might be
>appropriate)

I will agree that often I answer these posts from a purely
theoretical point of view. In this case, you are right, the
edges are getting more ragged every day.

I looked up the latin, and it appears to translate "after this,
on account of this". Since this doesn't seem to make sense,
there must be more to it (i.e. its probably idiomatic. For example
I remember that "res publica" translated literally means public
thing, but actually meant the government).

>>What are you suggesting here? Are you saying that there is no way that
>>you can keep things out of Computerworld?
>On a small scale, no. On a large scale, only by imposing such silly rules
>within UseNet as to destroy Usenet.

I am not sure that it would destroy the medium, since one advantage
would be to protect expression. This works in several ways. First,
one may be more likely to be candid if one knows that his opinions
are less likely to end up in the established, main-line media, read
by the (computer illiterate) management. Secondly, defamation is
probably harder to prove in UseNet, since there is often no
editorial control.

Henry Noble

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May 13, 1993, 1:05:21 PM5/13/93
to
I've only been reading this thread intermittently so this may
have been previously dealt with.

I wonder why there's any problem. The poster presumably
posted because he had something to make public. So why
is he upset that Computerworld helped spread his word? I
assume Computerworld attributed the article to the poster.

-henry

--
Henry Noble | tec...@sdc.boeing.com
Boeing Computer Services | techjn1%s...@atc.boeing.com
(206) 865-2447 | uw-beaver!bcsaic!sdc!techjn1

Paul E. Hoffman

unread,
May 14, 1993, 11:57:09 AM5/14/93
to
>Yes, I think that that is a good way of phrasing it -
>that the implied license ends at the door of Usenet.

Excellent summary, Bruce. I think that is what the average Usenet poster
assumes, although a survey (maybe by the Internet Society) could make that
clearer.

Dave Castell

unread,
May 14, 1993, 2:13:44 PM5/14/93
to
In article <bhayden.737271878@teal>, bha...@teal.csn.org (Bruce Hayden)
wrote:
[some discussion deleted]

>
> You do have a point though - what are the reasonable expectations
> of the averege (reasonable?) poster? I know what my are. But then
> I really don't care if I get quoted in Computerworld. But I understand
> why some might not mind being posted on millions of machines, but
> not be published in Computerworld. For example, they may know that
> their boss doesn't access the Internet, but does read Computerworld
> (and he may be saying something not very nice).
>

Just a few points to add...

1) I appreciate the concern about the "boss reading Computerworld"
scenario, but copyright may not prevent this negative outcome. Copyright
only protects the expression of an idea, not the idea itself. Therefore,
Computerworld may not be able to quote the employee due to copyright, but
they can paraphrase what the employee said. The 'angry boss' result is
still the same.

2) I don't know about what the U.S. Copyright Act's contain, but I thought
that in the Berne Convention there was something to the effect that
although all original works are technically copyrighted, in order to obtain
copyright protection the work must contain the '(c)' symbol, the year, and
the author in some specified format. If a usenet posting doesn't contain
this can one even argue the 'medium' question when the substantive
requirements have not been fulfilled. Perhaps someone in the know could
shed some light on what the exact requirements are.

3) Even if the notice is there and the court accept usenet as an OK
medium, what can a person do when his posting is reproduced. You may sue
for damages, but what are they? The courts usually limit them to economic
loss. Since, in general, nobody plans to make money from what they say in
there postings there is no loss when someone reproduces it. If the problem
is that someone else is making money (eg. selling magazines) from what you
said, there is loss to the poster, only a gain to the magazine so there is
no legally recognizable damages.

Dave Castell

Bruce Hayden

unread,
May 16, 1993, 6:56:37 AM5/16/93
to
dcas...@csg.uwaterloo.ca (Dave Castell) writes:

>In article <bhayden.737271878@teal>, bha...@teal.csn.org (Bruce Hayden)
>wrote:
>[some discussion deleted]
>>
>> You do have a point though - what are the reasonable expectations
>> of the averege (reasonable?) poster? I know what my are. But then
>> I really don't care if I get quoted in Computerworld. But I understand
>> why some might not mind being posted on millions of machines, but
>> not be published in Computerworld. For example, they may know that
>> their boss doesn't access the Internet, but does read Computerworld
>> (and he may be saying something not very nice).
>>

>Just a few points to add...

>1) I appreciate the concern about the "boss reading Computerworld"
>scenario, but copyright may not prevent this negative outcome. Copyright
>only protects the expression of an idea, not the idea itself. Therefore,
>Computerworld may not be able to quote the employee due to copyright, but
>they can paraphrase what the employee said. The 'angry boss' result is
>still the same.

The distinction is somewhat arguable. Yes, Copyright protects expression.
But the debate doesn't end there.

One other point. I understood the Computerworld quote to be essentially
verbatim.

>2) I don't know about what the U.S. Copyright Act's contain, but I thought
>that in the Berne Convention there was something to the effect that
>although all original works are technically copyrighted, in order to obtain
>copyright protection the work must contain the '(c)' symbol, the year, and
>the author in some specified format. If a usenet posting doesn't contain
>this can one even argue the 'medium' question when the substantive
>requirements have not been fulfilled. Perhaps someone in the know could
>shed some light on what the exact requirements are.

This is exactly opposite the law.

The notable idea behind Berne is its insistance on lack of formalities.
The issue of marking/notice (as you described it above) is what kept
the United States out of Berne for almost 100 years. It is only recently
that international trade has overcome our resistance (a similar thing
is now happening with patent harmonization and first to file vs
first to invent). The Universal Copyright Convention (UCC) was started
by the US to compete with Berne, and does have some language about
marking/notice.

The US history on marking can be divided into essentially three
periods. Prior to the 1976 Copyright Act, failure to properly
mark published works automatically ejected the work into the
public domain. Rather if you wanted protection, you had to mark.
Then came the 1976 Act. The distinction between published and
unpublished was weakened significantly. More importantly, protection
was automatic. However, one could still lose it by failing to mark.
(but you could save yourself by marking as soon as you discovered
the failure). Finally, works created after 3/1/89 are protected
regardless of marking or notice. The only thing that proper notice
gives you today (for works created after the BCIA) is negation
of a defense of innocent infringement.

>3) Even if the notice is there and the court accept usenet as an OK
>medium, what can a person do when his posting is reproduced. You may sue
>for damages, but what are they? The courts usually limit them to economic
>loss. Since, in general, nobody plans to make money from what they say in
>there postings there is no loss when someone reproduces it. If the problem
>is that someone else is making money (eg. selling magazines) from what you
>said, there is loss to the poster, only a gain to the magazine so there is
>no legally recognizable damages.

Currently you are correct. However, there is a move afoot to essentially
repeal portions of 17 U.S.C. 411 and 412. In particular, without
early registration of a work with the Copyright Office, statutory
damages and attorneys' fees are barred. And that registration costs
$20 plus the effort. Statutory damages get around your economic
damages problem, and attorneys' fees make it worth it to sue.
Thus, I would look for these dynamics to change significantly in
the next year or two.

D. J. Bernstein

unread,
May 16, 1993, 9:01:40 PM5/16/93
to
``Implied license'' is a rather contrived way to look at USENET.

Let's look at the facts. When someone posts an article to USENET, he
knowingly and directly causes the article to be copied many times by
many automatic mechanisms. Some people save the article from the net
onto their own disks, or even print it out. Occasionally a newspaper
or magazine takes the article and publishes it without permission.

I don't see any ``implied license'' there. By posting this article I
am not giving anyone a license, implied or explicit, to do anything.
If you want to argue otherwise you have to overcome several hurdles,
varying a bit from state to state. Let's assume no license exists.

Some people think that there's a copyright violation going on behind
the scenes when an article is copied from computer to computer. This
position is silly. After all, _who_ is violating copyright? Machines
don't violate copyright---people do. The passive voice (``an article
is copied'') hides the fact that, in normal USENET distribution, all
copying of an article has been caused directly by whoever posts it.

Some people think that saving an article off USENET to disk or paper
is a copyright violation. It isn't because such copying is fair use.
The law explicitly allows fair use of copyrighted documents. (Beware
that the legal definition of ``fair use'' is rather vague: it simply
requires courts to consider four factors in deciding whether someone
is copying ``fairly'' or not. The most important factor is money. It
is difficult to argue that printing out an article for one's own use
is depriving the author of any income.)

Publication of an article in a newspaper is entirely different. When
a journalist or magazine editor sees an article on USENET and copies
it _for wide distribution in his own publication_, what defense does
he have to the claim of copyright violation? The original author did
not directly and automatically cause the editor's action. The editor
cannot rely on fair use since money is involved. For all we know the
original author might be planning to publish all his USENET articles
in a book. Unauthorized publication could deprive him of his income.

If the article isn't clearly identified as coming from USENET, or if
it isn't an exact copy of the original, one could even make a strong
case for the republication being fraudulent. Often people claim that
copyright law is the only protection authors have. It is not. If you
were to attach my name to something I did not write, I could sue you
for fraud and even libel.

---Dan

Bruce Hayden

unread,
May 17, 1993, 12:11:45 AM5/17/93
to
d...@silverton.berkeley.edu (D. J. Bernstein) writes:

>``Implied license'' is a rather contrived way to look at USENET.

It may be contrived, but its the best way of describing what is
happening. When you post an article, you expect that it will be
distributed throughout the world (usually). You are not doing the
reproduction. At best you can say that posting causes some of the
distribution (but clearly not all).

I think it is quite straight forward - you expect that the news
will be posted elsewhere, by whoever, and by whatever means.
By posting, you therefore implicitly agree that any copying that
might happen as long as it is within the network is ok.
This is the implied license.

>Let's look at the facts. When someone posts an article to USENET, he
>knowingly and directly causes the article to be copied many times by
>many automatic mechanisms. Some people save the article from the net
>onto their own disks, or even print it out. Occasionally a newspaper
>or magazine takes the article and publishes it without permission.

>I don't see any ``implied license'' there. By posting this article I
>am not giving anyone a license, implied or explicit, to do anything.
>If you want to argue otherwise you have to overcome several hurdles,
>varying a bit from state to state. Let's assume no license exists.

If you aren't giving anyone a license, then how do they get the
right to reproduce your work?

>Some people think that there's a copyright violation going on behind
>the scenes when an article is copied from computer to computer. This
>position is silly. After all, _who_ is violating copyright? Machines
>don't violate copyright---people do. The passive voice (``an article
>is copied'') hides the fact that, in normal USENET distribution, all
>copying of an article has been caused directly by whoever posts it.

So, your position is that if you can rig it so that noone actually
gives the copy command you don't have copying? In other words, the
way to get around copyright infringement is to automate it?

Your idea is valid at one level. However, it falls apart when either
you have a moderated group, or someone archives the newsgroup.
There may also be problems with your analysis for those situations
where SLIP connectis are used.

>Some people think that saving an article off USENET to disk or paper
>is a copyright violation. It isn't because such copying is fair use.
>The law explicitly allows fair use of copyrighted documents. (Beware
>that the legal definition of ``fair use'' is rather vague: it simply
>requires courts to consider four factors in deciding whether someone
>is copying ``fairly'' or not. The most important factor is money. It
>is difficult to argue that printing out an article for one's own use
>is depriving the author of any income.)

I think your view of fair use is somewhat simplistic.
First, which factors in section 107 are weighed the most
heavily depends on the court. There is a chance that you
could lose with 2 & 3. Indeed, any commentators that I
have ever read have stated that you should tread very
carefully when raising that defense. As you are probably
very aware, fair use is often raised as a defense.
But most of the time, it is rejected.
(I think you would find if you did a survey comparing
how often it is raised vs. how often it is rejected,
you would find most of the time it is rejected).

But I think you have to get to a more basic level.
The question is whether the use is an implied license
or fair use. In favor of an implied license is the fact
that the reasonable expectations of the poster of news
is that the post will be "reproduced" onto literally
thousands of machines.

Fair use has nothing to do with reasonable expectations.
Instead, it is primarily oriented towards "criticism,
comment, news reporting, teaching ... scholarship, or research"
(17 USC 107).(Note the "comment" here is only really
applicable when someone is commenting on what someone else said -
in particular the inclusion of your post within mine -
since I am currently commenting on what you said (same with criticism)).
Which of those is this?

I believe that implied license is a better theory here.
Using fair use is like pounding a square peg into a round hole.
That doctrine was never crafted to cover something that
happens probably millions of times a day, but rather is aimed
at limited exceptions, where very limited numbers of copies are
ever made.

>Publication of an article in a newspaper is entirely different. When
>a journalist or magazine editor sees an article on USENET and copies
>it _for wide distribution in his own publication_, what defense does
>he have to the claim of copyright violation? The original author did
>not directly and automatically cause the editor's action. The editor
>cannot rely on fair use since money is involved. For all we know the
>original author might be planning to publish all his USENET articles
>in a book. Unauthorized publication could deprive him of his income.

>If the article isn't clearly identified as coming from USENET, or if
>it isn't an exact copy of the original, one could even make a strong
>case for the republication being fraudulent. Often people claim that
>copyright law is the only protection authors have. It is not. If you
>were to attach my name to something I did not write, I could sue you
>for fraud and even libel.

Actually I think you would have to streatch for either fraud or libel.
You would do much better with 43(a) of the Lanham Act (false
designation of origin) than either of your two causes of action.

D. J. Bernstein

unread,
May 17, 1993, 5:07:19 AM5/17/93
to
In article <bhayden.737611905@teal> bha...@teal.csn.org (Bruce Hayden) writes:
> d...@silverton.berkeley.edu (D. J. Bernstein) writes:
> >``Implied license'' is a rather contrived way to look at USENET.
> It may be contrived, but its the best way of describing what is
> happening.

I disagree. The facts of news posting are as I stated them. The legal
aspects are as I stated them, in the absence of any license. For no
apparent reason you claim there is a license, enormously complicating
any description of what's going on. What's your goal in claiming this?
What's your proof that a license exists?

> When you post an article, you expect that it will be
> distributed throughout the world (usually). You are not doing the
> reproduction.

Oh? Who else is doing the reproduction? The csn.org computer? I'm going
to sue a computer for copyright violation?

> I think it is quite straight forward - you expect that the news
> will be posted elsewhere, by whoever, and by whatever means.

On the contrary. Your expectations---not that they have any relevance,
since there is no license---are that the software will do what you told
it to do, namely post the article around the world.

> By posting, you therefore implicitly agree that any copying that
> might happen as long as it is within the network is ok.
> This is the implied license.

No. Who is this supposed ``agreement'' _with_? What does ``within the
network'' mean? Where is the consideration? Most importantly, how could
you ever prove in court that such a license exists, when there is
absolutely no reason for it to exist? I explicitly deny any such
agreements; yet I have gone ahead and posted this article, causing it to
be copied into your computer. I'm not agreeing to any further copying.
Of course, I can't control fair use.

> If you aren't giving anyone a license, then how do they get the
> right to reproduce your work?

They _don't_. Easy, eh? (More precisely: they ask me, if they have
some reason to want to reproduce my work outside the bounds of fair
use. Sometimes I say yes. Sometimes I don't.)

USENET would have exactly the same legal status if my machine, when
posting this article, were to connect to every other machine around
USENET, one by one, and send the article there.

> So, your position is that if you can rig it so that noone actually
> gives the copy command you don't have copying?

If I have directly caused certain copying, I can't sue anyone for the
copying. Of course, as I mentioned before, copying isn't the only thing.

> Your idea is valid at one level. However, it falls apart when either
> you have a moderated group, or someone archives the newsgroup.

Certainly it does not apply to a moderated group, where the poster is
no longer _directly_ causing any copying other than the original
submission; when I submit an article to a moderator, I'm agreeing to
abide by his policies, etc. Archives are fine to the extent that they
fall under fair use.

> There may also be problems with your analysis for those situations
> where SLIP connectis are used.

There are not. The delay inherent in part-time SLIP is no different
from the delay caused by news batching programs.

> But I think you have to get to a more basic level.
> The question is whether the use is an implied license
> or fair use. In favor of an implied license is the fact
> that the reasonable expectations of the poster of news
> is that the post will be "reproduced" onto literally
> thousands of machines.

Just because I expect you to discuss legalities with me over the net
doesn't mean I have an agreement with you to do so. This isn't ``in
favor of an implied license''; it's irrelevant. You have several things
to _prove_ if you want to show that there's a license.

---Dan

Stuart P. Derby

unread,
May 17, 1993, 1:39:24 PM5/17/93
to
In article <1937.May17...@silverton.berkeley.edu>
d...@silverton.berkeley.edu (D. J. Bernstein) writes:
>In article <bhayden.737611905@teal>
bha...@teal.csn.org (Bruce Hayden) writes:
>> d...@silverton.berkeley.edu (D. J. Bernstein) writes:
>> >``Implied license'' is a rather contrived way to look at USENET.
>> It may be contrived, but its the best way of describing what is
>> happening.
>
>I disagree. The facts of news posting are as I stated them. The legal
>aspects are as I stated them, in the absence of any license. For no
>apparent reason you claim there is a license, enormously complicating
>any description of what's going on. What's your goal in claiming this?
>What's your proof that a license exists?
>
>> When you post an article, you expect that it will be
>> distributed throughout the world (usually). You are not doing the
>> reproduction.
>
>Oh? Who else is doing the reproduction?

Umm.. DJB seems to be taking the stance that once the poster
sends the post, it's all automatic and every Usenet-produced
copy is, in effect, "copied" by the poster, i.e. the poster
causes ALL the copies. Unfortunately, that's not true. One
counter-example, albeit debatable, is the USENET CD-ROM. If
you accept this as "part of USENET" (which I do, though it's
debatable and legally grey until some courts take a shot at
the issue), then you have to account for the copying done
by the producers of that CD-ROM. They make those copies, not the
poster. Similarly, I know of a couple USENET sites that take
very limited feeds and do so only on demand. The sysadmins just
dial up their feeding sites and copy the new articles in the groups
they take. It's also relevant that at least one of them feeds yet
another site. Finally, here at Baylor, and at a vast number of
other sites, copying of individual articles as selected by
readers of USENT is done on demand as part of reading the article
(using rn and NNTP). ALthough this copy is transient, it's still
a copy, and it is made by the reader, not the poster. I don't see how
anyone who understands how USENET *really* works can say that the poster
does all the copying.
Implied license is the only legal theory I can think of that
fits the facts as I know them. The poster KNOWS his post is
going to be scattered far and wide. Other people take an
active part in this distribution. The poster has not explicitly
granted permission or otherwise made an agreement with them,
but the act of posting clearly implies that the poster wants
the post distributed "normally" (whatever that is), hence
the poster is granting an implied license to all and sundry
to distribute within USENET.

-Stu
--
------------------------------------------------------------------------
Stuart Derby - sde...@bcm.tmc.edu | USENET gem #4723 "Once again, your
Baylor College of Medicine | wacko politics get in the way of
Houston, Texas | reasoned discussion." -JM

D. J. Bernstein

unread,
May 17, 1993, 8:52:51 PM5/17/93
to
Let me state this again: If the action of copying an article is directly
caused by the author, then there are no copyright issues, because nobody
other than the author is engaging in copies. If the action of copying an
article is caused by someone else, then that person may be violating the
author's copyright.

A court faced with the question of whether certain copying is legal will
use exactly this test. If it decides that the author made the copies, it
will not allow any claims of copyright violation. If it decides somebody
else made the copies, it will allow such claims.

That is the complete story. There are no contracts, no licenses, nothing
permitting copyright violation if someone other than the author made the
copies. The legal barriers to showing that there is some implied license
are overwhelming.

In article <1t8ikd$1...@gazette.bcm.tmc.edu>


sde...@crick.ssctr.bcm.tmc.edu (Stuart P. Derby) writes:
> Umm.. DJB seems to be taking the stance that once the poster
> sends the post, it's all automatic and every Usenet-produced
> copy is, in effect, "copied" by the poster, i.e. the poster
> causes ALL the copies.

That is not the stance I'm taking. I haven't claimed that all copying is
caused directly by the author. In fact, I gave examples where it is not.
My comments also do not rely on whatever vague definition you might have
in mind for ``Usenet-produced copy''; I've been talking about all copies
made, both inside and outside ``the net.''

The extent to which Sterling is violating your copyright by distributing
the USENET CD-ROM is exactly the extent to which it is causing copies to
be made. I do not know how a judge would address this issue. Presumably,
Sterling will argue that it is simply distributing articles which others
have caused to be copied via the automatic mechanisms it set up. I think
this is a reasonable view. Either way, a judge will use the test I said.

The transient copies made by an NNTP newsreader are caused by the author
when he posted the article. (Just because the magic mouth does not speak
until somebody sits down near it, with a sack of potatoes, does not mean
that the magic user didn't cause the mouth to speak. [grin])

---Dan

Terry Carroll

unread,
May 18, 1993, 1:00:30 PM5/18/93
to
In article <dcastell-1...@aries16.uwaterloo.ca>,
dcas...@csg.uwaterloo.ca (Dave Castell) writes:
> 2) I don't know about what the U.S. Copyright Act's contain, but I thought
> that in the Berne Convention there was something to the effect that
> although all original works are technically copyrighted, in order to obtain
> copyright protection the work must contain the '(c)' symbol, the year, and
> the author in some specified format.

Nope, it's quite the opposite. Article 5, section 2 of Berne provides, "The
enjoyment and the exercise of these rights shall not be subject to any
formality . . . "

Now, the U.S. is also a signatory to the Universal Copyright Convention
(UCC), which permits (but does not require) a nation to require notice in the
way you've mentioned, in Article III, section 1:

Any Contracting State which, under its domestic law, requires
as a condition of copyright, compliance with formalities such
as deposit, registration, notice, notarial certificates, payment
of fees or manufacture or publication in that Contracting State,
shall regard these requirements as satisfied with respect to all
works protected in accordance with this Convention and first
published outside its territory and the author of which is not
one of its nationals, if from the time of the first publication
all the copies of the work published with the authority of the
author or other copyright proprietor bear the symbol [C-in-a-circle]
accompanied by the name of the copyright proprietor and the year
of first publication placed in such manner and location as to
give reasonable notice of claim of copyright.

And, to complete the thought, Berne supercedes the UCC by express provision
in the UCC. The UCC appendix makes it clear that, between two nations
signatories to both conventions, Berne (and not the UCC) applies:

The States which are members of the International Union for the
Protection of Literary and Artistic Works (hereinafter called "the
Berne Union") and which are signatories to this Convention,

Desiring to reinforce their mutual relations on the basis of
the said Union and to avoid any conflict which might result from
the co-existence of the Berne Convention and the Universal Copyright
Convention,

Recognizing the temporary need of some States to adjust their
level of copyright protection in accordance with their stage of
cultural, social and economic development,

Have, by common agreement, accepted the terms of the following
declaration:

. . .

(c) The Universal Copyright Convention shall not be applicable
to the relationships among countries of the Berne Union in so far
as it relates to the protection of works having as their country
of origin, within the meaning of the Berne Convention, a country
of the Berne Union.


Terry Carroll

unread,
May 18, 1993, 1:07:13 PM5/18/93
to
> 3) Even if the notice is there and the court accept usenet as an OK
> medium, what can a person do when his posting is reproduced. You may sue
> for damages, but what are they? The courts usually limit them to economic
> loss. Since, in general, nobody plans to make money from what they say in
> there postings there is no loss when someone reproduces it. If the problem
> is that someone else is making money (eg. selling magazines) from what you
> said, there is loss to the poster, only a gain to the magazine so there is
> no legally recognizable damages.

For most torts, you'd be correct. However, the copyright act specifically
recognizes profits made by the infringing party as damages collectable by the
owner of the copyright, even if the owner did not actually suffer damage in
the amount of the profits made:

The copyright owner is entitled to recover the actual damages
suffered by him or her as a result of the infringement, *and
any profits of the infringer that are attributable to the
infringement* and are not taken into account in computing the
actual damages. In establishing the infringer's profits, the
copyright owner is required to present proof only of the
infringer's gross revenue, and the infringer is required to
prove his or her deductible expenses and the elements of profit
attributable to factors other than the copyrighted work.

17 USC 504(b) (emphasis added)


Bruce Hayden

unread,
May 19, 1993, 4:28:02 AM5/19/93
to
d...@silverton.berkeley.edu (D. J. Bernstein) writes:

>Let me state this again: If the action of copying an article is directly
>caused by the author, then there are no copyright issues, because nobody
>other than the author is engaging in copies. If the action of copying an
>article is caused by someone else, then that person may be violating the
>author's copyright.

>A court faced with the question of whether certain copying is legal will
>use exactly this test. If it decides that the author made the copies, it
>will not allow any claims of copyright violation. If it decides somebody
>else made the copies, it will allow such claims.

No, I think you err. You have to first look to see who is actually doing
the reproduction. If someone else is doing the actual reproduction,
then you can look to see if you "caused" the reproduction. If you
"caused" the reproduction, but did not actually perform it, then
you must come up with a legal theory allowing that person to perform the
reproduction without infringing your copyright.

>That is the complete story. There are no contracts, no licenses, nothing
>permitting copyright violation if someone other than the author made the
>copies. The legal barriers to showing that there is some implied license
>are overwhelming.

What are these "overwhelming" legal barriers?

Are you then stating that every time a news post is copied other than
by the efforts of the author you have copyright infringement?
This seems rather extreme to me.

>In article <1t8ikd$1...@gazette.bcm.tmc.edu>
>sde...@crick.ssctr.bcm.tmc.edu (Stuart P. Derby) writes:
>> Umm.. DJB seems to be taking the stance that once the poster
>> sends the post, it's all automatic and every Usenet-produced
>> copy is, in effect, "copied" by the poster, i.e. the poster
>> causes ALL the copies.

>That is not the stance I'm taking. I haven't claimed that all copying is
>caused directly by the author. In fact, I gave examples where it is not.
>My comments also do not rely on whatever vague definition you might have
>in mind for ``Usenet-produced copy''; I've been talking about all copies
>made, both inside and outside ``the net.''

But they do. If someone else is reproducing your post,
then you cannot be. Its simple physics,(and copyright law).
And of course if someone else is reproducing your work, then
you either have copyright infringement, or you must have some
defense thereof, or you are liable (civily, and maybe criminally).

>The extent to which Sterling is violating your copyright by distributing
>the USENET CD-ROM is exactly the extent to which it is causing copies to
>be made. I do not know how a judge would address this issue. Presumably,
>Sterling will argue that it is simply distributing articles which others
>have caused to be copied via the automatic mechanisms it set up. I think
>this is a reasonable view. Either way, a judge will use the test I said.

Well, I think judges tend to react to the reality of the situation.
Regardless of your legal (?) theories, I cannot see a judge finding
actionable copyright infringement for an action that almost all
involved consider to be part of the game.

>The transient copies made by an NNTP newsreader are caused by the author
>when he posted the article. (Just because the magic mouth does not speak
>until somebody sits down near it, with a sack of potatoes, does not mean
>that the magic user didn't cause the mouth to speak. [grin])

You seem to be arguing that if you have a cooperative such as Usenet,
where people agree to "copy" articles on a routine basis, then these
people are not actually "copying" - you are.

BUT 17 USC 106 states that
"the owner of copyright under this title has the
exclusive right to do and to authorize any of the following:
(1) to reproduce the copyright work in copies...
(3) to distribute copies ... to the public for sale or other transfer
of ownership...
(5) ... to display the copyrighted work publically".

Clearly, if someone else is performing the reproduction, regardless
of agreement, or cooperative action, 106(1) is obviously being
violated.

Given the reality of Usenet, you are faced with the fact that
you "authorize" the reproduction of your posts when you do not
do the reproduction yourself. Your claim that you do it all by
yourself is contrary to the reality of the what actually happens.

I think it comes down to the fact that you cannot be reproducing
the work when someone else is actually doing the reproducing.

And the only legal theory that I know of that will support
"authorizing" the reproduction of works by others is implied license.
(you are giving them an implied license to reproduce).

Bruce Hayden

unread,
May 19, 1993, 4:58:53 AM5/19/93
to
d...@silverton.berkeley.edu (D. J. Bernstein) writes:

>In article <bhayden.737611905@teal> bha...@teal.csn.org (Bruce Hayden) writes:
>> d...@silverton.berkeley.edu (D. J. Bernstein) writes:
>> >``Implied license'' is a rather contrived way to look at USENET.
>> It may be contrived, but its the best way of describing what is
>> happening.

>I disagree. The facts of news posting are as I stated them. The legal
>aspects are as I stated them, in the absence of any license. For no
>apparent reason you claim there is a license, enormously complicating
>any description of what's going on. What's your goal in claiming this?
>What's your proof that a license exists?

>> When you post an article, you expect that it will be
>> distributed throughout the world (usually). You are not doing the
>> reproduction.

>Oh? Who else is doing the reproduction? The csn.org computer? I'm going
>to sue a computer for copyright violation?

You seem to be then taking the position that if you set a computer
(or any other device) to automatically copy things that you can't
have copyright infringement since a person is not doing the copying.
I think we can all think up scenerios that make this position untenable.

>> I think it is quite straight forward - you expect that the news
>> will be posted elsewhere, by whoever, and by whatever means.

>On the contrary. Your expectations---not that they have any relevance,
>since there is no license---are that the software will do what you told
>it to do, namely post the article around the world.

>> By posting, you therefore implicitly agree that any copying that
>> might happen as long as it is within the network is ok.
>> This is the implied license.

>No. Who is this supposed ``agreement'' _with_? What does ``within the
>network'' mean? Where is the consideration? Most importantly, how could
>you ever prove in court that such a license exists, when there is
>absolutely no reason for it to exist? I explicitly deny any such
>agreements; yet I have gone ahead and posted this article, causing it to
>be copied into your computer. I'm not agreeing to any further copying.
>Of course, I can't control fair use.

Fair use of course has nothing to do with this.

The consideration by the poster is the implied license to allow
reproduction of the post throughout the network. The consideration
by those reproducing the work, or allowing their computers to
reproduce the work, is that they do reproduce it. This consideration
is valuable to you since you want your views distributed throughout
the network.

As repeatedly stated, you need a license, because otherwise there
would be copyright infringement every time your post is reproduced
by someone else, or someone else's computer.

I find your statement that there is no agreement absurd.
If there is no agreement, then how does your post get posted
around the world? By magic? No - by the coordinated efforts of
thousands of people and machines.

>> If you aren't giving anyone a license, then how do they get the
>> right to reproduce your work?

>They _don't_. Easy, eh? (More precisely: they ask me, if they have
>some reason to want to reproduce my work outside the bounds of fair
>use. Sometimes I say yes. Sometimes I don't.)

But fair use doesn't apply. (or it is significantly weaker)

>USENET would have exactly the same legal status if my machine, when
>posting this article, were to connect to every other machine around
>USENET, one by one, and send the article there.

No it wouldn't. In that case you might be able to claim that you
were actually doing the reproduction. But the only way that it
can be reproduced around the world is if there is an agreement
that it will be (i.e. that the news will be forwarded, regardless
of how that happens). And of course if you have an agreement...

>> So, your position is that if you can rig it so that noone actually
>> gives the copy command you don't have copying?

>If I have directly caused certain copying, I can't sue anyone for the
>copying. Of course, as I mentioned before, copying isn't the only thing.

i
But of course here you haven't. The only way that you get your news
post copied around the world is to depend on the cooperation you
so desperately are trying to avoid.

>> Your idea is valid at one level. However, it falls apart when either
>> you have a moderated group, or someone archives the newsgroup.

>Certainly it does not apply to a moderated group, where the poster is
>no longer _directly_ causing any copying other than the original
>submission; when I submit an article to a moderator, I'm agreeing to
>abide by his policies, etc. Archives are fine to the extent that they
>fall under fair use.

And how do you reconcile this with your position that you are
directly causing the post to be reproduced around the world?
If someone else is doing the reproduction, you have to have
something (hopefully a legal theory) that allows that person
to make the reproductions.

>> There may also be problems with your analysis for those situations
>> where SLIP connectis are used.

>There are not. The delay inherent in part-time SLIP is no different
>from the delay caused by news batching programs.

Except that one could argue that since the copying was dependant
usually upon the person putting up the Slip connection, the
person creating the news post is not DIRECTLY respoible for
the reproduction, but rather is INDIRECTLY responsible, depending
again on the agreement (which you apparently deny) between users
of news to distribute the news.

>> But I think you have to get to a more basic level.
>> The question is whether the use is an implied license
>> or fair use. In favor of an implied license is the fact
>> that the reasonable expectations of the poster of news
>> is that the post will be "reproduced" onto literally
>> thousands of machines.

>Just because I expect you to discuss legalities with me over the net
>doesn't mean I have an agreement with you to do so. This isn't ``in
>favor of an implied license''; it's irrelevant. You have several things
>to _prove_ if you want to show that there's a license.

I think that your definition of an agreement is somewhat askew.

Well, what are these magical requirements that you seem to think are
required? Name the requirements (and provide citations since noone
else seems to accept your position either), and we will address them.
,

Maxim Savic

unread,
May 19, 1993, 2:09:38 AM5/19/93
to
>although all original works are technically copyrighted, in order to obtain
>copyright protection the work must contain the '(c)' symbol, the year, and
>the author in some specified format. If a usenet posting doesn't contain

I found it interesting to note that the "(c)" that many electronic
documents use to denote copywrite CAN be challenged. I have no idea why this
would make a difference, but apparently only the "c" with an "o" around it is
satisfactory in claiming acutal copywrite.

øķĄĩĪþŪĐ°åæßðĢ;;'ąŨįŠš­­ļļ,./ đēģĒž―ū···Ŧŧ-= Now what was the keystroke,
alt-???...

M. Savic
"Time Flies Like an Arrow, Fruit Flies Like Bananas."
--ROT is fun! 748-9026

Bruce Hayden

unread,
May 20, 1993, 12:59:41 AM5/20/93
to
msa...@realm.tdkcs.waterloo.on.ca (Maxim Savic) writes:

>>although all original works are technically copyrighted, in order to obtain
>>copyright protection the work must contain the '(c)' symbol, the year, and
>>the author in some specified format. If a usenet posting doesn't contain

> I found it interesting to note that the "(c)" that many electronic
>documents use to denote copywrite CAN be challenged. I have no idea why this
>would make a difference, but apparently only the "c" with an "o" around it is
>satisfactory in claiming acutal copywrite.

Well, you are right. There are a number of cases that have rejected
the "(c)". However, most terminals don't support the "c in a circle".
The reason of course is that the three forms of allowable marking
are specified very precisely in 17 USC 401 (either the "c in a circle",
the word "Copyright", or the abbreviation "Copr." are acceple).

Luckily marking is becoming under Berne much less of a problem.
Currently, in the U.S., (given a U.S. creator), all that notice
(marking) does is negate a defense of innocent infringement.
(17 USC 401(d) and 405(b) effective 3/1/89 with the BCIA).
However, I would argue that the "c in a circle" would be almost
as effective there. (But since it does not have the statutory
weight, you are at at least a little disadvantage using it instead).

Barry Margolin

unread,
May 20, 1993, 4:56:05 AM5/20/93
to
In article <bhayden.737801933@teal> bha...@teal.csn.org (Bruce Hayden) writes:
>d...@silverton.berkeley.edu (D. J. Bernstein) writes:
>>Oh? Who else is doing the reproduction? The csn.org computer? I'm going
>>to sue a computer for copyright violation?
>
>You seem to be then taking the position that if you set a computer
>(or any other device) to automatically copy things that you can't
>have copyright infringement since a person is not doing the copying.
>I think we can all think up scenerios that make this position untenable.

I'm not sure I agree with him, but Bernstein seems to be taking the
position that Usenet can be viewed as a giant copy machine, with output
bins all over the world. When you post news you're pushing the virtual
"Copy" button.

Yes, there are people all over who have to set up network links, phone
lines, etc., but they're analogous to the factory workers who put together
a copy machine. They're necessary to put the mechanism in place, but
they're not an active part of the automatic process. The people who build
copy machines aren't violating copyright, so neither are the people who
install UUCP and NNTP connections.

But, as several have pointed out, moderated newsgroups are the big
exception to any rule about Usenet that assumes everything is automatic.

D. J. Bernstein

unread,
May 20, 1993, 5:36:20 AM5/20/93
to
In article <bhayden.737800082@teal> bha...@teal.csn.org (Bruce Hayden) writes:
> You have to first look to see who is actually doing
> the reproduction.

That's exactly what I said.

What you don't seem to accept is that in normal distribution of
articles, the _only_ person doing the reproduction is the poster.

You seem to think that the legal status of net articles somehow depends
on the exact technology used to distribute those articles. If my machine
were to explicitly send this article to every reader site, one by one,
as would happen if I put the article up for ftp, you apparently would
think that I alone was doing the copying; whereas if my machine sent the
articles by way of uunet, you would think that James Revell had copied
the articles.

Such a position is absurd. Revell has not knowingly copied the article.
He has simply set up a machine which lets other people conveniently copy
articles.

Even if your position were tenable, it would have many unfortunate
consequences. Apparently you believe that if someone posts an
unauthorized copy of Jurassic Park, which at some point is fed through
uunet, then Revell, along with hundreds of thousands of other people, is
violating Crichton's copyright.

> >That is the complete story. There are no contracts, no licenses, nothing
> >permitting copyright violation if someone other than the author made the
> >copies. The legal barriers to showing that there is some implied license
> >are overwhelming.
> What are these "overwhelming" legal barriers?

Who are the parties to the supposed license? What did they agree to do?
Where is the explicit consideration? How can an implied contract
possibly exist when it is _explicitly_ disclaimed, as it is in some
articles? Where was the ``meeting of the minds''?

> Are you then stating that every time a news post is copied other than
> by the efforts of the author you have copyright infringement?

Outside of fair use, and except where _explicitly_ permitted, yes.

> But they do. If someone else is reproducing your post,
> then you cannot be. Its simple physics,(and copyright law).

If I cause X, and X causes Y, and Y causes Z, then I have caused Z. I
cannot escape responsibility for Z by breaking up the X-Y-Z chain into
lots of little components. I would have to point to some other person's
knowing action. A computer is not a person.

> You seem to be arguing that if you have a cooperative such as Usenet,

This network, to the extent that it has any legal or real existence, is
not a cooperative. There are no global rules for joining, and there is
no uniformity of local rules. You have a contract with your feed and
nobody else. There's nobody you can sue if the net doesn't produce what
you want it to produce, or doesn't distribute your articles the way you
want them distributed.

> And the only legal theory that I know of that will support
> "authorizing" the reproduction of works by others is implied license.

Such support is not necessary, and such a theory is untenable.

---Dan

D. J. Bernstein

unread,
May 20, 1993, 6:17:37 AM5/20/93
to
In article <bhayden.737801933@teal> bha...@teal.csn.org (Bruce Hayden) writes:
> The consideration by the poster is the implied license to allow
> reproduction of the post throughout the network. The consideration
> by those reproducing the work, or allowing their computers to
> reproduce the work, is that they do reproduce it.

This theory has many flaws.

One is that it's factually incorrect in our case. I explicitly deny
giving the consideration which you say I give by posting this article,
and I do not recognize the value of the consideration which you say I
get.

But the more interesting flaw is a logical flaw which will cause _every
argument of that form_ to be rejected by a judge. Here we go.

Let me remind you of the effects of requiring consideration. If I
promise to give you something, but you don't promise me anything in
return, then you can't hold me to my promise; the supposed contract is
unenforceable. In many (most?) states, that's how contracts work. The
public doesn't think that one-sided contracts are a good thing.

You could _try_ to hold me to my promise by inventing an (``implied'')
consideration. It doesn't matter what the ``something'' is; you could
say that, once I gave it to you, you would use it for my benefit. Let me
repeat this: _you can invent consideration for any gift_.

Do you see the logical flaw now? If your invented consideration were, in
fact, accepted by the court, then _every_ contract could be made to have
consideration in the same way, and the consideration requirement would
have no effect. The judge, reasoning this way, will conclude that he has
to reject your invention, so as to preserve the requirement.

That's why consideration has to be explicit.

Try again.

---Dan

Gregory G. Woodbury

unread,
May 20, 1993, 3:15:48 AM5/20/93
to
There is one (fairly simple) addition to the model being bandied about
here (poster causes the copies to be made) that simplifies things
somewhat.

Based on a presumption that by "posting" (exposing to public view) an
item, the author wants that item to be read, the author is viewed as
using the NetNews (and other message transfer) mechanisms to "give" a
copy of the item to each potential reader.

The author cannot violate their own copyright, and if they don't want
the article read, why bother posting it?

This also neatly limits some of the other problems. Simply giving the
editor of ComputerWorld (or any other publication) is *not* the
equivalent of submitting an item for potential publication. Most
publications have a standard and well defined procedure for submitting
an item for publication (including letters to the editor) and it is
quite unlikely that simple posting of an item will follow that
procedure.

I *used* to believe in the "implied license" theory, until a lawyer
(specializing in itellectual property law) convinced me that there were
much better models for NetNews and BBS networks (with respect to
limitation of liability of the system operator.)

There *is* still the question of authorization for the use of the
resources to do the distribution of the copies made by the author, but
NetNews is a voluntary activity, and an entity accepting a NetNews feed
had damned well better be aware that it is going to be using resources
from their machines to operate. :-) [We have seen machines and
companies drop off of UseNet on occasion due to considerations of this
sort.]

Greg Woodbury
--
Gregory G. Woodbury @ The Wolves Den UNIX, Durham NC <Standard disclaimers>
UUCP: ...dukcds!wolves!ggw ...duke!wolves!ggw [use the maps!]
Domain: g...@wolves.Durham.NC.US ggw%wol...@duke.cs.duke.edu
[This site is *not* affiliated with Duke University. (Idiots!) ]

Carl Oppedahl

unread,
May 23, 1993, 5:50:11 PM5/23/93
to

>>although all original works are technically copyrighted, in order to obtain
>>copyright protection the work must contain the '(c)' symbol, the year, and
>>the author in some specified format. If a usenet posting doesn't contain

> I found it interesting to note that the "(c)" that many electronic
>documents use to denote copywrite CAN be challenged. I have no idea why this
>would make a difference, but apparently only the "c" with an "o" around it is
>satisfactory in claiming acutal copywrite.

Er, the three statutory choices (in the US) are "Copyright", "Copr.", and
the c-in-a-circle. Nothing else will do. In particular, "(c)" is not
sanctioned by the statute.

But, under the Berne Convention, it can be argued that even if the notice
is missing entirely, the work is still protected by copyright.


--
Carl Oppedahl AA2KW (intellectual property lawyer)
30 Rockefeller Plaza
New York, NY 10112-0228
voice 212-408-2578 fax 212-765-2519

Andrew Greinke

unread,
May 23, 1993, 10:10:09 PM5/23/93
to
In article <1torij$9...@sun.Panix.Com> oppe...@panix.com (Carl Oppedahl)
writes:
:In <msavi...@realm.tdkcs.waterloo.on.ca> msa...@realm.tdkcs.waterloo.on.ca

(Maxim Savic) writes:
:::although all original works are technically copyrighted, in order to obtain
:::copyright protection the work must contain the '(c)' symbol, the year, and
:::the author in some specified format. If a usenet posting doesn't contain

:Er, the three statutory choices (in the US) are "Copyright", "Copr.", and


:the c-in-a-circle. Nothing else will do. In particular, "(c)" is not
:sanctioned by the statute.

:But, under the Berne Convention, it can be argued that even if the notice
:is missing entirely, the work is still protected by copyright.

And so it should be. In Australian copyright law, protection is _automatic_
and needs no copyright notice, (c) or any other "claim" for protection.

Maybe we are one step ahead.

Cheers,

Andrew.
grea...@fac.anu.edu.au


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