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Archiver > GEN-MEDIEVAL > 2000-01 > 0947850477
From: "James P. Robinson III" <>
Subject: Re: Finton/Reed Agreement (long)
Date: Fri, 14 Jan 2000 11:47:57 +0000
While Mr. Finton has requested comments and while I am referring
to his post and statements in particular, I do not mean to be attacking him
or singling him out. If it appears so, I apologize in advance. I believe
this is an important issue to the future of this list as well as the many
people on this list who maintain websites.
First off, Mr. F., I must suggest that you consult a competent
communications lawyer with Internet experience or, at the least (and this
is a much cheaper alternative), begin attending continuing legal education
seminars on intellectual property and the Internet. You might also wish to
see if you can subscribe to The Communications Lawyer which is published by
the Forum on Communications Law of the American Bar Association, which also
often deals with the application of non-US law to Internet published or
posted material. You should also be aware of the Digital Millennium
Copyright Act (DMCA) and the related World Intellectual Property
Organization (WIPO) Copyright Treaty which prompted the passing of the
DCMA. They both impact Internet copyright issues.
And again, I would ask you, Mr. F., to undertake to this forum not
to publish anyone's work without their permission. I think this would be
an important show of good faith on your part and will go far to repairing
your credibility and the credibility of TPC.
I will intersperse my specific comments below.
As the clock struck 04:51 PM 1/13/2000 -0500, took pen in
hand and wrote:
>In a message dated 1/12/2000 10:31:43 PM, writes:
>
><< In my opinion, fairness demands that the same pledge should be extended to
>EVERYBODY who does not already have an agreement with you. After all, others
>who feel the same way ought to have the same rights, even if they didn't feel
>comfortable speaking out. So long as it is understood that these same rights
>should apply to everybody, I consider the above reasonable. >>
Not only reasonable, but the requirements of the law.
>This is interesting and still leaves me with some problems that should
>probably be addressed for the good of all. Below is one example of what one
>lawyer says. Other lawyers have other opinions because the matter has never
>been tested and neither the courts nor the copyright office nor the Geneva
>Convention have ever addressed issues about copyrights in forums such as
>this.
This is not even remotely true. The US courts have addressed legal rights
and obligations related to material posted on Internet forums (specifically
including copyright issues regarding USENET postings, see, e.g. Religious
Technology Center v. Netcom On-Line Communications Services, Inc., 907 F.
Supp. 1361 (N.D.Cal. 1995)) for, at least ten years now. This is not to
mention the DMCA and the WIPO Copyright Treaty. So, there is a
considerable, although certainly still dynamic and evolving body of
relevant law. Are there still significant areas which have not been
unequivocally decided? Sure, lots.
> PLEASE NOTE THAT I AM NOT USING THIS AS AN EXCUSE FOR FREE REIGN ON
>THIS FORUM. I EXPECT TO ABIDE BY COMMON SENSE.
Abiding by the law is a requirement, not an option. Publishing copyrighted
material ( e.g., a post of this forum0 while either removing the copyright
statement on the material or placing it subject to your own copyright
statement is almost certainly a violation of sec. 1202 of the DCMA, which
would make you liable for statutory damages of $2500 - $25,000 per
reproduction. I do not know the circulation of TPC, but even if it is only
100, you could conceivable be looking at $250,000 in damages regardless of
the existence of actual damages at all. In addition, in an egregious and
knowing case, you could be liable for criminal prosecution and penalties up
to a $500,000 fine and 5 years in jail. Is this likely in the scenarios we
are discussing? Probably not, but it ought to give you an incentive to
publish nothing without permission.
>__________
> From Brad Templeton Home Copyright Myths
>10 Big Myths about copyright explained
>Snip of outdated legal psuedo-legal observations by a non-lawyer.
>NOTE THAT MY QUOTING THE ABOVE IS ALLOWED UNDER FAIR USE PROVISIONS.
>
>
>In answer to Stewart's remark above, I obviously believe that the same rights
>apply to everyone. However, if this all becomes _too_ complicated, then it is
>impossible for me to do some things that I should be able to do.
Whether obeying the law is difficult or not is irrelevant. How complicated
it becomes (and why is it so complicated?) can NEVER provide an
excuse. Believe me, paying my taxes this year will be a complicated and
painful process and will make it impossible for me to take a vacation which
my doctor says I need (and certainly should have), but the IRS is not going
to take that as an excuse for not paying them.
> Very short
>posts about facts or references, etc. are not the same as the substantive
>posts and roundtable discussions that we are talking about.
The posts themselves (i.e., the expression of the facts) is still
copyright. The facts and ideas are free game.
> In these situation
>s, such as simple questions or simple short answers to a question, I have
>long assumed that fair use covers these short quotes, provided they are not
>obviously in error and the poster is made to look bad by presenting wrong
>information that could reflect upon them. Remember also that some people do
>not even stay with a server long enough for replies or have an address that
>cannot be replied to.
This cannot excuse violation of their property rights. I own a small
vacant lot across town. I doubt the neighbors know who I am. It would
certainly be a hassle for them to track me down. But this does not mean
they are allowed to build a house on my property and call it their own.
> Sometimes three months after the post was made, one
>cannot find the person who made the post. My object is to give everyone
>credit for their contributions and this always has been the policy.
Giving credit does not excuse an unconsented publication of someone's work.
>One thing that might be difficult to continue with very strict rules is the
>_Question and Answers_ section that often contains very small questions and
>answers that are still of interest. That section is a catch all for
>interesting blurbs that would otherwise be totally lost.
>
>Such an example is below:
>
>"Does anyone have any information on the lineage of Richard Sears [b ca.
>1590, buried 8/26/1676], a founder of Yarmouth. He landed in Salem in 1638
>and is rumored to have ancestry through the Knyvet and Bourchier lines.
>Jennifer Kimbley"
>
> "For a specific discussion of this Sears line, which is a Somerby fraud,
>see my notes on the matter in my article on Somerby's frauds in TAG (1999
>issues).
>Paul Reed"
This is very clearly a violation of copyright and of the DCMA provision
referred to above, unless both Paul and Ms. Kimbley have given you
permission. But it is further troubling in Paul's regard because the
format suggests that Paul is an your staff. He is responding to a
questions that looks like it is coming from a subscribers (I assume she is
not) on behalf of TPC. This could be actionable at law regardless of
copyright.
>Who is hurt by the above quote being printed? Answer: No one.
Everyone is hurt by the disregard of property rights. Paul may well be
hurt if it leads to his being identified with a publication which may come
to have a bad reputation in academic circles (I am not stating that this is
so in regard to TPC). Academics have long memories and love scurrilous gossip.
> Who gains?
>The public,
> Paul Reed and TAG, who has received publicity and a source
>citation. Do I gain? Perhaps minutely. There is no real monetary gain, but
>someone may be thankful to know where to look and the journal looks good for
>the inclusion.
>
>Now under my new agreement with Paul, I suppose I am obligated to show him
>this before going to press.
You would be obligated to get permission to post this exchange regardless
of any agreement.
> It does seem to be a real waste of his time and
>mine to do so. In reality, this is 'fair use' material, falling under all the
>guidelines of 'fair use'.
This does not even come close to fair use. I am afraid you do not yet have
a good handle on this safe haven and how it works. It is somewhat slippery
and requires some (and continuing) study or expert advice. However, the
above interchange could be stated as to simply the facts and would avoid
copyright problems. Such as, instead of the above:
Any interested in the alleged Richard Sears of Yarmouth line
through the Knyvet and Bourchier families, now disclosed as fraudulent,
would do well to take a look at Paul Reed's article on the Somerby's
frauds in TAG's 1999 issues.
The same facts and ideas without the copyright headaches.
> There is nothing there that can possible reflect
>badly upon anyone, unless Paul made an error in his reply--which he obviously
>did not.
>
>However, each instance such as this is unique and requires some instant
>judgment from me. Some things could be a little longer. Fair use does not say
>exactly how many words can be quoted before it becomes a problem. Since this
>is a scholarly journal and the aim is the dissemination of knowledge and
>resources, I believe I have a little more latitude to quote that some people
>really think I do.
This does NOT give you more latitude as far as fair use goes.
>Remember also this very important fact: that these posts are already
>published on the web.
I am afraid you mistake the importance of this. They might as easily be in
private letters or notes stuck on a physical bulletin board.
> No one really knows if Todd Farmerie and Don Stone are
>really the owners of this material in that they have published it on the web.
>The courts and laws have never addressed this issue in reality.
Look at the Netcom case quoted above and the DCMA. The clear
interpretation of those laws and decisions is that the poster is the owner,
not the list owner, server owner or hosting ISP. In fact, Todd and Don and
the server owner etc. cannot be held liable for anyone posting copyright
violating material on their list, although, of course, the poster can.
> In the above
>example, my suspicion is that Todd and Don are really the owners of the
>material. Why? Because it was published on a domain which they literally
>own.
As above, this is not true.
> Similarly, when I ask permission to reprint a review from TMR, I ask the
>owners/editors of the electronic review, not the reviewer who wrote the
>material. They can legally give me permission to publish the review without
>referring to the author or the review and they do so all the time.
They can only legally give you permission because their authors have
transferred the copyrights to them. This is, in fact, explicit in my
clients' contracts with their writers. If the copyright had not been
transferred, say in the occasional situation when an author sells only
first publication rights (most common in serialized fiction coming out in
advance of book publication), the editor could NEVER legally give you
permission, and you would BOTH be liable if he did.
>Similarly, when I publish material from PROSOPON, I get the permission from
>the director or the editor, not from the author (though sometimes it is the
>same person). This has been the standard procedure for _all_ publications,
>because publications have a publisher and that is the person who owns the
>forum in which the material is held. That is the person who foots the cost
>for the forum and the archives. That person or those persons are _really_ the
>person who owns the material.
This is simply not true, despite any logical sense it may make. A
publisher obtains copyright to the works it publishes by buying it from the
author. The author and publishers are perfectly free to do a deal
transferring only limited rights. In fact, in my clients' contracts with
their writers, the writers retain certain limited re-publication rights.
> Because of the fact that the posts on this
>forum are archived and accessible, they are literally published as soon as
>you hit the send button and the permission to reprint is actually a decision
>that should be made by the list owners ... though they do not want the job, I
>am sure. (Sorry, Todd and Don to overload your minds, but this is really the
>case.)
The list owners cannot legally give this permission. Doing so would
probably deprive them of the protections of the DMCA and subject them to
liability for vicarious copyright violation.
>In summary, it is not all is so cut and dried. Internet forums such as this
>have really never been addressed by actual law. Even the best of lawyers can
>only advise us as to how what they think we must do to protect ourselves.
There is relevant law. And you ignore it at your peril. A good
communications lawyer can give you good advice in the regard (and, yes, it
is just advice, no law is completely set in stone in a common law
jurisdiction).
>It is much better, I think, that we have a "ladies and gentleman's"
>agreement" about how to handle such matters. Such agreements must also be
>within the fair use provisions of they are illegal.
The law is sufficiently clear to guide our actions, but I believe you are
absolutely right that a ladies' and gentlemen's agreement is necessary to
re-establish trust in this forum. Again, I would ask you to undertake
openly not to quote anyone's material without permission.
>Again, this is not a meant to be construed as a means of circumventing the
>agreement with Paul Reed. However, I really do not think it worth his time or
>mine to ask permission for a small blurb such as the one quoted. Because I
>have spoken with Paul, I have a better understanding of his main
>concerns--and these are concerns about his _reputation_. Paul is only human,
>and in haste he can easily make an error even in a small post. If that error
>is printed by me and not recognized as an error by me, then I suppose that
>could possible put a small pimple on his reputation. To err, though, is
>human, and I suspect that his superb credentials would easily outweigh the
>faulty memory of an esoteric fact. And there is always the recourse of
>correction.
Unfortunately, you also open yourself up to the recourse of the law. Be a
good businessman, as well as the good genealogist and publisher that I am
sure you are, and way the risks before you make a decision.
>Comments anyone?
A final comment from you, and a personal one. I have made only a handful
of substantive posts to the forum (I am more benefited and benefiting), and
I have not published in this field, although I have both published and
edited in other academic disciplines. My interest is mainly
professional. However, I have been working on a "new" gateway ancestor
(James Drake, about whom I have posted here before). I had intended to put
my research and conclusions before this forum well in advance of
publication as a sort of peer review process and to refine my thesis and
arguments (or scrap them, who knows). I certainly will put off doing so
now until I am comfortable that my work will not appear in print without my
permission.
--
=================================================
James P. Robinson III
All original material contained herein is copyright and property of the
author. It may be quoted only in discussions on this forum and with
an attribution to the author, unless permission is otherwise expressly
given.
=================================================
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