Copyright of your Internet email and news postings
Date: Sun, 10 Jul 94 16:52:32 PDT
Subject: Copyright of your Internet email and news postings
Forwarded-by: bostic@vangogh.CS.Berkeley.EDU (Keith Bostic)
From: Wendell Craig Baker <firstname.lastname@example.org>
Enclosed is an article by Susan G. Lesch <email@example.com> from the
latest TidBITS (TidBITS#233/04-Jul-94) entitled ``Your Work On TV? A
View From The USA.'' Its more of an essay really, but I'm forwarding
it because the author did do some interviews with industry people
in addition to putting forth a viewpoint. Her interviewees were:
Debra Young - Corporate Communications Specialist, CompuServe.
Stanton McCandlish - `Activist,' Electronic Frontier Foundation.
Mike Godwin - Legal Counsel, Electronic Frontier Foundation.
Gail Ann Williams - Conferencing Manager, The WELL.
Margaret Ryan - Spokesperson, AOL Corporate Communications.
Alan Cox - Reporter, WCCO-TV Minneapolis/St. Paul (CBS).
Philip Elmer-DeWitt - Senior Writer, Time magazine,
Stanley Hubbard - President, Chairman and CEO, Hubbard
Broadcasting Inc., also on the National
Information Infrastructure Advisory Council
Interestingly there is not a consistent picture here. Not everyone is
quite ready to say that postings in email or news are copyrighted. Or
if they were whether that guaranteed the copyright owner any control
over its use in further ventures (profit-making or not). Most seemed
to agree that it was polite to give attribution but there was no clear
consensus on what one could or could not properly do with an electronic
piece of text. In particular the Electronic Frontier Foundation, who is
supposed to have a clear picture of this, contradicted themselves in the
interviews with Stanton McCandlish stating that copyright protection
occurred by default yet Mike Godwin stated that the law did not concern
itself with such trivial matters.
So, riddle me this batman: you get this piece of text in your mailbox;
what can you do with it? Send it on? Archive it? Resell it? Can you
delete it? (think about that for a moment!)
The wrong answer to questions like these may cost you a fair bit of legal
fees and probably cash. And there are people out on the net now who are
making it their business to see that you get your answers right.
[ TidBITS#233/04-Jul-94; see following ]
Your Work On TV? A View From The USA
by Susan G. Lesch <firstname.lastname@example.org>
The pictures are familiar. Television reporters find online
messaging easy to quote, and easy for a camera crew to reproduce.
The Internet boom has TV reporters reaching a critical mass in
their efforts to translate the net for broadcasting. Turn on a TV
news program, and hear the text of a message, or watch the camera
pan an office and then zoom in on a monitor connected to an online
service or the Internet.
The list is long. A recent MacNeil/Lehrer PBS report on the
Clipper chip, coverage of the NRA (National Rifle Association), an
ABC magazine segment about selling sex online, an ABC News
"Nightline" special report on privacy, last winter's NBC coverage
of the Winter Olympics, CNN's May report on email stalking, and
the same story on a recent ABC "A Current Affair" all incorporated
direct quotation or representation of text on a computer terminal.
The author of such a message is often not present, and unlike
guests on TV talk shows, may not even be aware that his or her
words have been aired.
My hope is that this article will defend what rights of
authorship, ownership, and privacy exist, in the face of
increasing press coverage of online messaging. To my knowledge -
and I am neither a lawyer nor a journalist - no case law
establishes these rules for TV either way. Certainly, the act of
posting to a public BBS is evidence of the author's intent to make
the work available to others who access the board. However, it is
far from clear that such an act gives reporters license to
reproduce that text without attribution.
For most purposes, the U.S. Copyright Act of 1976, as amended in
1992, holds today. When anyone creates a written work, whether
trivial or of great value, he or she is the author and
automatically receives rights of ownership at the time of
creation. U.S. copyright extends through the life of the author
plus 50 years, and affords the rights to copy the work, to
distribute copies, and to make and profit by "derivative works,"
such as abridgment, translation and adaptation. (An aside here,
only about one quarter of the world's 189 countries and 46
dependencies agree to the Berne Convention covering copyright.)
I asked the EFF (Electronic Frontier Foundation) whether posts on
public paid services enjoy more protection than Internet posts,
and for verification that online messages are copyrighted. The
consensus was that a paid service offers no extra protection to
its authors. Stanton McCandlish, EFF online activist, reassured me
that Internet postings are instantly copyrighted. Mike Godwin,
staff counsel for the EFF, wrote, when I asked him about TV
coverage of online messages, "I regard this as an insignificant
problem - one that causes no significant harm to the individuals
involved, at least insofar as their copyright interests go. The
relevant legal principle is 'De minimis non curat lex.'" This was
the first of several prominent EFF member opinions I found
disconcerting - "The law is not concerned with trifles."
An EFF co-founder, John Perry Barlow, is well known for writing
and speaking about what he perceives as a dying set of laws
governing intellectual property (an umbrella term covering
copyright, patents, trademarks, and trade secrets). Mr. Barlow
described an "enigma" surrounding digital expression in his "The
Economy of Ideas," Wired magazine 2.03.
He asks, "If our property can be infinitely reproduced and
instantaneously distributed all over the planet without cost,
without our knowledge, without its even leaving our possession,
how can we protect it?" I believe he is wrong to suggest that
creators of work distributed digitally have no rights of
authorship. The answer to his question might be to strengthen what
rights the U.S. gives the owners of such work, rather than to
encourage the evaporation of those rights. Whether one is a famous
lyricist such as Barlow - for the rock 'n' roll band, the Grateful
Dead - or an average person, composing and posting messages
online, the law protects copyrighted work, and copyrighted work
must be attributed if quoted.
It is usual in discussions of these issues to hear strong
opinions. These include abolishing copyright, defense of the First
Amendment rights of a writer taking precedence over the right to
privacy of the individual being reported upon, bitter attacks on
reporters who have overstepped guidelines, as well as delight upon
discovering that one's name has been used without one's knowledge.
Although I believe that defending copyright is critical, for every
claim to ownership, there appears a cry for enrichment of the
public domain. For every desire expressed for privacy, there is a
defense of the doctrine of fair use.
Debra Young, Corporate Communications Specialist for CompuServe,
confirmed in a 25-May phone interview that CompuServe upholds
member copyright on all postings to CompuServe message boards.
CompuServe does not advocate indiscriminate use of the service's
vast text base by TV or print reporters. "What we're trying to do
is protect privacy. If a camera were to pan over a message and
leave it illegible there is no problem." If it focused on a third-
party supplied database, permission would have to be given by that
supplier, since CompuServe is merely the means of transmission in
this case." She continued, "For the time being we follow basic
law. However, each situation must be examined to measure its
social and legal impact on both the online community, and everyone
else watching." From what I can tell, CompuServe can be commended
on its ability to state a position on copyright.
Of all the people I talked to, Gail Ann Williams, Conferencing
Manager of the WELL, seemed to have the most experience with
members complaining about reporters using their messages. The WELL
cannot prohibit people from reproducing its message base, nor can
it promise to take legal action at the request of a member who
feels taken advantage of. She said, "If a journalist is careless,
they will damage their reputation. The prudent journalist would
take the time to determine the intentions of the author, and get
permission if it was considered created property. Some people
think they're talking; others think they are writing and
To quote America Online's surprising Terms of Service, "Message
Boards shall not contain copyrighted material and anyone posting
information in these areas thereby consents to the placement of
such material in the public domain." Margaret Ryan, spokesperson
for AOL Corporate Communications, made it clear that America
Online has rules and wants to "protect members' privacy." I hope
other services do not adopt the America Online model, which is the
flip side of CompuServe's - the message base and chat areas may be
reproduced freely as long as screen names are changed or blocked
Ed Garsten of CNN's Detroit bureau produced one of the first
national TV pieces on alleged electronic stalking (27-May-94). CNN
is an America Online partner, America Online was not mentioned,
and we agreed he was within even strict interpretations of fair
use. However, in A Current Affair's rendition of the same story
(09-Jun-94), America Online was identified on ABC - the interface,
exact screen names, and email text were legible. Also Donahue's
CBS shows about America Online were not approved by America Online
prior to airing.
CBS-owned WCCO-TV, Minneapolis/St. Paul, has produced a weekly
feature about online culture for the past year as part of its
newscasts. To his credit, reporter Alan Cox said, "Not even
fleetingly would we put private material on-screen," because he is
aware that his audience has VCRs with pause buttons. But Mr. Cox's
policy on televising text is based on this erroneous idea,
"Basically, our philosophy on the Internet is that messages are in
the public domain." Citing deadline constraints, he said WCCO has
run messages without permission, with the author's name removed.
Philip Elmer-DeWitt, Senior Writer at Time magazine, whom I talked
to regarding a PBS broadcast he produced that quoted net messages
without attribution, gave this some thought. In an enjoyable phone
interview on 25-May he decided, "After all the legal rigmarole, I
suspect that even CompuServe or the WELL, which takes a very high
moral position on this, will find that if it comes to a court of
law, that they cannot stop somebody from publishing writing that
somebody has posted on a public bulletin board. This is my guess.
But it's _wrong_ for a television program to run this stuff on TV
without getting permission. It's just bad form."
Stanley Hubbard, President, Chairman and CEO of Hubbard
Broadcasting Inc., is one of about 40 people who form the NIIAC
(National Information Infrastructure Advisory Council), appointed
by the U.S. Commerce Department to create reports for the U.S.
government through early 1996. He is a member of the NIIAC
subcommittee on intellectual property, security and privacy. Mr.
Hubbard agreed in a 28-Jun phone interview that the difficulties
arise when TV programs cross U.S. boundaries, and disagreed with
my stance on the copyright status of some electronic messaging. He
was intrigued by these questions, and said "We [the NIIAC] are not
law makers. We are only advisors to the administration."
TV's interface with online messaging is changing fast as these
media merge, both technologically, and by shared financial and
legal interests, like TV Guide / The News Corporation / Delphi /
Internet and CNN / TIME / Warner / NBC / The New York Times /
America Online / Internet, to name two huge notable associations
that already exist. Apparently it is legal for TV reporters to do
what I've described if authors are credited, and not legal if no
credit is given. But there are exceptions, like America Online,
and new precedents are being set. Maybe the watch dogs of the
industry need to be watched.
Policy makers, journalists, and key players I spoke with seemed
ready to defend fair use exemptions for the TV press, and reticent
to give people posting to the net credit for their work! I was
astonished to hear an NIIAC member say that the value of the
average person's postings may not be great enough to disallow its
use in a broadcast. If a reporter finds a posting interesting
enough to televise, how can it not have value, is that reporter
not profiting by it, and is it not U.S. law and good practice that
the source be credited?
I am afraid the consequence of becoming accustomed to such use
without attribution will be erosion of the U.S. right to
instantaneous copyright. By making simple acknowledgments of
copyright and authorship, TV reporters covering electronic
messaging can increase the value of the wealth of information
stored online - to its owners!
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