[news.misc] Ignorant statements about mail ownership yet again

weemba@garnet.berkeley.edu (Obnoxious Math Grad Student) (09/02/88)

I think it's time that something about this was put in n.a.newusers,
considering how often this brand of ignorance comes up.  I'm directing
followups to news.misc.

Disclaimer: I am not a lawyer, but I have read what lawyers have said
about copyright, both on the net and in books.  Believe at your own risk.

>>Setting aside *******'s apparent serious breach of net-ethics by
>>publishing someone's email without permission,

>Once delivered, mail is the property of the recipient.  Its dispensation
>is at the sole discretion of the owner, including publishing via
>whatever medium he/she chooses.  This is not just libertarian rhetoric.
>The concept is actually applied by the U.S. Postal Service!

If you are referring to surface mail, **copyright** is maintained by
the sender.  The recipient *owns* the mail, but absolutely zero rights
to publish it any form--and those rights are what copyright is all about
in the first place.  The letter is *born* copyrighted; there is no need
for any explicit (C) kind of indications.

This has been tested--successfully--in court, most notably in the recent
J D Salinger lawsuit.  The letters in question were sent to someone half
a century ago, and said someone eventually donated or sold them--as was
the recipient's rights by way of owning the "letter" (as opposed to own-
ing the "words") and eventually they ended up in Princeton University's
library, if I remember correctly.  Princeton can exploit its ownership
in many ways: putting the letters on display, keeping them locked up,
lending them to a Salinger museum, whatever.  But Princeton has no rights
to *publish* the letters without the copyright holder's permission, nor
can anyone else.

This isn't very subtle: just because I spent a quarter for the local
newspaper, does not mean I can now exert my "ownership" of this copy
of the paper and run an optical scanner on the paper and post the
results to Usenet.  (Thank God!)  I can do other things, though, like
give or sell my newspaper to someone else.

If ******* plans someday to be the first volunteer to test this prin-
ciple in court with regards to *electronic* mail, he's welcome to it.
Of course, if the rest of us call him "stupid" or "foolhardy" for this
line of action, he shouldn't be too surprised.

ucbvax!garnet!weemba	Matthew P Wiener/Brahms Gang/Berkeley CA 94720

mcb@eris.berkeley.edu (Michael C. Berch) (09/05/88)

In article <13844@agate.BERKELEY.EDU> weemba@garnet.berkeley.edu
(Matthew P Wiener) writes:
> If you are referring to surface mail, **copyright** is maintained by
> the sender.  The recipient *owns* the mail, but absolutely zero rights
> to publish it any form--and those rights are what copyright is all about
> in the first place.  The letter is *born* copyrighted; there is no need
> for any explicit (C) kind of indications.

Righto.  The technical reason for this is that the letter is *not
published*.  There is a body of jurisprudence about exactly what
constitutes "publication" for copyright (and for libel/slander)
purposes; the criteria for publication include the number of intended
recipients, whether the author *intended* to keep the communication
private (shown by direct or circumstantial evidence), the means of
communication, etc.  So a letter sent via sealed first class mail from
one individual to another is undoubtedly unpublished (and the author
retains intellectual property rights to it), unless the author can be
shown to have implicitly "published" the letter, as in including a
statement like "feel free to redistribute this".  On the other hand, a
form letter sent to thousands of recipients who are not personally
known to the author may well be construed to have been published, and
the latter would pass into the public domain if the author did not
affix notice of copyright.

On the other hand, as I have tried to point out here and there, the
*information* contained in private mail is NOT protected by copyright
law, merely the fixed embodiment of the idea in particular prose.  (It
may be protected from disclosure by trade secret law, by previous
agreeement of the parties, by a fiduciary relationship, or by other
law [e.g., classified information].)   So if Dr. Weemba writes me a
letter in which he asserts that, say, the Military Governor of
Fredonia is a pinhead, I am perfectly free to report that fact to others.

Michael C. Berch
Member of the California Bar
mcb@eris.berkeley.edu / mcb@tis.llnl.gov / ucbvax!eris!mcb