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Archiver > GEN-MEDIEVAL > 2002-01 > 1012141284


From: (Bryant Smith)
Subject: Re: U.S. Copyright Law (was: several related threads with diffeent titles)
Date: 27 Jan 2002 06:21:24 -0800
References: <a9b2ce02.0201240644.3236c7ea@posting.google.com>, <3c530b56.12082630@news.ifb.co.uk>


(Gordon Johnson) wrote in message news:<>...
> On 24 Jan 2002 06:44:15 -0800, (Bryant Smith)
> wrote:
>
<SNIP>
> ** Two points from the above:
> 1. Bryant assumes that all users of newsgroups, etc. are subject to
> US law. This is completely wrong, and so US copyright law is only one
> aspect of the discussion. UK copyright law does not allow extensive
> quotes from a work, and recent Acts of Parliament specifically covers
> electronic media such as newsgroups.

I make no such assumption; however the "beef" has been between
a U.S. publisher and two U.S. academics, if I read them correctly.

> 2. Bryant also assumes that the various authors are concerned only
> with some potential future publication of their work. By my reading as
> a bystander, this is patently not so. They are concerned at the
> reproduction of their postings in another media without their
> permission.
At least one remark by one of the protagonists plainly indicated
a desire to have his ideas limited to the newsgroup because of a
book he was working on and hoped to publish, and feared that his
ideas would be rendered stale by premature publication in their
preliminary form. In another set of threads -- the other side of
the coin, so to speak -- others urged another publisher not to
rush into print before the issue had been more thoroughly thrashed
out, including through peer-review. This focus on ink-and-paper
as somehow less ephemeral than electronic media seems to me
misguided; I can foresee the day when publishers of books and
journals will see the value of offering their materials for sale
in electornic form over the internet, if only to gain the short-term
benifits of wider distribution.
If authors are _not_ concerned about the future marketability of
their works then we come back to my earlier remark about conflicts
of an essentially personal nature.
Moreover in U.S. law we should not lose sight of the aim of
copyright, which is to secure to authors the right to profit,
for a limited time, from the fruits of their labors, as an
incentive to serve the wider public good of the increase of
knowledge. I haven't seen a case raising the point -- I have
to admit I haven't looked for it -- but I question whether a
purely dog-in-the-manger claim of copyright on a work of admittedly
no commercial value would survive review in the U.S. Supreme Court.
> This is not mere quotes to illustrate a point - it is
> almost complete reproduction of a discussion, the equivalent of
> correspondents having a discussion by letter. These "letters" are
> being reproduced in a journal without the authors permission.
> As we have already seen, letters remain the copyright of the writer,
> and postings are in effect letters which the author wrote at home then
> sent to the newsgroup (the equivalent of a journal but without an
> editor).
I suggest the analogy is not entirely apposite. Princess Diana's
letters were private correspondence, each sent to a single individual,
probably intended only for the persons to whom addressed. Newsgroup
contributions are a different breed of cat, addressed to the whole
world. There is a privacy flavor in the one case not present in
the other. Under U.S. law, with its Constitutional backgound, one
might even question whether the promotion of the advancement of
science and the useful arts is served by granting a monopoly to
the writer of private letters concerning personal matters. To my
mind it is a close call in the first place to hold that you retain
the copyright of a letter you send to me, and I can think of
a zillion cases in which I should be allowed to publish it. Suppose
for example you libel my friend in such a letter: Can you doubt that
I would be allowed to republish your letter in one of my own to my
friend? Or if you later publish a book laden with kind words about
my friend, would I not be entitled to call you "hypocrite" and
republish your letter as proof?
> I suggest that copyright lawyers in most countries would consider
> letters (in whatever media) to be subject to copyright protection.
If the case is one merely of cutting-and-pasting whole articles into
a journal I would not disagree. However (not having seen the journal
article[s] objected to) if it is a case of reporting an academic
controversy by setting forth the opposing ideas and supporting
authorities, without too much in the way of verbatim quotation,
it seems clear that, in the U.S. at least, the public purpose served
by copyright would protect the publication of the journal article.
> Perhaps a good solution would be for the newsgroup to have a statement
> for all subscribers to accept when they subscribe, that: [for example]
> "all postings remain the copyright of the authors and their permission
> must be sought for any form of reproduction elsewhere."
> As one has to subscribe in order to read the postings, subscribing
> would then be a legal acceptance of the statement.
I.e., convert the claim of copyright into a contractual claim. But
in any case it won't work. My only access to this and other
newsgroups is via the Google archives, and they are unconditionally
open to all the world. This point was recently made as a sufficient
reason for not bothering to exclude a troublesome "contributor" from
the subscription list.
*****
Maius opus moveo:
Information technology has, for better or worse, outstripped the law.
Actually there probably never was a time when the accelerating
advance of science did not keep well ahead of the ability of judges
and legislators to adapt the law to changing social conditions.
It is easily foreseeable that whole libraries will become available
over the internet: There are already subscription services available
offering access to public-domain statutes and court decisions;
amazon.com is already offering copyright "e-books."
How will copyright law deal, or fail to deal, with such
developments? We are already beginning to see the answer, with
the pirating of popular music: Only works of considerable commercial
value will sustain the cost of copyright enforcement. The length
of the period of effective copyright protection will as a practical
matter shrink. The "first sale" doctrine -- crucial to the
distinction already present in copyright law between the "work" and
the "copyright" -- will give increasing protection to buyers of
authorized copies of works. Today, if I buy a book, I have the
right to resell it or to lend it privately or commercially.
Tomorrow, with my scanner and OCR technology, I can make an editable
copy of the book and send it, over the internet, to a country like
Thailand where copyright is, apparently, unheard of. The lesson
is this: If you hope to profit from your creative work, keep it
clear of the internet until you've sold it, on the best terms you
can get, to a publisher having the will and the resources to secure
whatever protection may be available under copyright law, but expect
in any case a rapidly-diminishing flow of your royalties.
In all, this is not so very different from what has always been the
case. There have been very few authors, and virtually no poets,
grown rich on the fruits of their labors. There is a hobby farm
down the road from where I live, owned by a kindly old man who
lives in San Jose but comes down to his farm from time to time
to write his novels in the tranquility of the place. He has
never found a publisher for any of his works, yet he has them
mimeographed and spiral-bound for distribution. His next novel
is usually hand-written in pencil on the backs of the pages of
the remaindered copies of his previous one. He writes for the
joy of creative writing, and self-publishes for the satisfaction
of seeing his works in print. Surely what motivates him is not
too unlike what moves the great majority of writers. He's happy,
because he's not worried about copyright. Academics sometimes
write because they have to write, and need to publish, for their
tenure and reputations. Some of them seem overly-concerned
about their copyrights. But I foresee the day when their
universities will recognize their contributions to internet
newsgroups as contributions to knowledge satisfying the
underlying reasons for requiring them to publish -- contributions
all the more valuable because of their wider circulation; and
they need not fear loss of credit, for other academics will
surely use their work only with attribution, if only to avoid
discovery of plagiarism (a hot current topic!) and criticism
for failure to cite sources.
Saludos
Bryant Smith
Playa Palo Seco
Costa Rica

> Gordon Johnson.


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