All discussion below is for U.S. law, but that's the only law that
matters in this particular case.
On Mon, 12 Dec 1994, Tina Sikorski wrote:
> >
> > > If you or anyone you know DOES NOT want their FAQ included on the disc,
> > > they should send mail to seidl@cdrom.com in the following format:
> > >
> > > My name is ......
> > > My FAQ is ..........
> > > I do not want my FAQ included on the Internet Info cdrom
> >
> > This is not good enough. You are violating copyright and the express wishes
> > of many FAQ maintainers by including their FAQs without first explicitly
> > requesting permission. This behavior is unethical and illegal and
> > should cease > immediately.
>
> Oh give me a break. Look, my FAQ includes an explicit copyright at the
> beginning and I'm not getting bent out of shape about it.
>
> Let's address your points:
>
> 1. [the CDROM people] are violating copyright .... This behavior is
> [illegal]
>
> Well, its quite possible that they would have a leg to stand on in a
> courtroom battle. I don't know about you, but my copyright specifically
> allows distribution via electronic means; although I do prohibit the
> collection of money for such distribution, they might be able to make the
> case that they are only collecting 'fair distribution' costs, given how
> inexpensive the CD is.
I really doubt that a company that is not organized for non-profit
activity would be able to get away with asserting that its copying is
"not for profit" on the ground that they don't know if it will be a
successful project. That's the nature of nearly all new publications,
and clearly the typical copyright waiver does not go that far.
My limited waiver, BTW, reads in pertinent part, "[the FAQ] may not be
sold for profit or incorporated in commercial documents without the
written permission of the copyright holder."
> Most people on the 'net who use explicit copyrights use a variation of
> the one I use, and most people who rely on implicit ones would probably
> feel that that sufficiently covers their rights for their purposes.
I should clarify some terminology here, because this will clear up some
things.
First, as most of you know, works are copyrighted as soon as they are
fixed in a tangible medium of expression from which they can be
perceived, reproduced, or otherwise communicated, either directly or by
means of a machine or device. That clearly includes our FAQs.
There is no "explicit copyright" or "implicit copyright." There is just
copyright.
There is such a thing as a "copyright notice," which consists in its most
common net.form as "Copyright 1994 Joe Smith". But the notice is not
necessary for copyright -- it has only the very limited value of defeating
a partial defense of innocent infringement (whereby the defendant can
claim that they didn't realize that what they were doing was infringement)
to mitigate, but not eliminate, damages. Essentially, a defendant can't
say "I didn't know it was copyrighted," if the copy he had had a copyright
notice. Here, that's pretty much irrelevant since the potential defendant
clearly knows that the works are copyrighted. Although the lack of a
copyright notice on a particular FAQ would allow them to claim that they
didn't realize the FAQ was copyrighted, their other actions and
communications related to this project pretty much burst that bubble.
What Tina is referring to as an explicit copyright is more properly
called a "license," an "offer to license," or (my preference), a "waiver."
Tina and I each have limited waivers in our FAQs. But, and here is a big
but, the FAQs with no mention of copyright at all (what Tina terms
"implicit copyrights") have no waivers. Therefore, they probably cannot
be held to have waived the copyright in any way. The only thing that
could be claimed is that, by posting it to the 'net, they have waived the
copyright to the extent that things on the net are routinely copied via
the normal usenet and Internet transmission and archive schemes. But I
think it's very difficult to argue that placement on a commercially sold
CD-ROM is one of those traditional schemes.
> Because this is the standard interpretation of the implicit copyright,
> any FAQ that does not contain an explicit copyright worded so as to be
> more restrictive would be very likely to be interpreted this way by a
> court.
Because of my comments above, I don't believe that this is correct.
> I'll grant that I have only read a very tiny fraction of the FAQs
> on Usenet, but I've seen very few explicit copyrights in them. Do yours?
I think that there are more copyright notices now than, say, a couple of
years ago. Net.awareness of copyright and intellectual property is
growing. I humbly think this is in some small part due to my and other
FAQs on law and law-related issues. Two years ago, there were no FAQs
coming out of the legal groups. Mine was the first, and there are now at
least three, probably more that are not catalogued in the news.answers/law
subarchive. In addition, magazines like Wired and others have heightened
this awareness, and I've seen a lot of articles in computer magazines
about copyright. And I personally have received several emails from
persons either asking permission to use my waiver or to comment on theirs,
for planned FAQs.
> I've been very wordy about this point, even though its the one that I
> have the least contention with. It could easily be interpreted as
> illegal to publish the FAQs in this manner. But, tell me, are you going
> to sue the people who maintain the FAQ archives? How about someone who
> prints out a copy of your FAQ and leaves a copy around for anyone to look
> at? How far will you go in defending your copyright?
That is, of course, up to each copyright owner for each act of copying. I
personally like to assert my copyright to prevent people from distributing
out-of-date copies of my FAQ. As a condition of placing my FAQ on a
gopher or WWW site, I require the person to agree to update it as new
versions become available. Admittedly, I can't afford to file a suit if
they don't, but having a legal basis to back up my request is nice (and
helpful when I find an out-of-date copy).
> 2. 'by including their FAQs without first explicitly requesting
> permission'
>
> But that's precisely what they've just done!
The original poster to whom Tina is replying is a little imprecise in his
words. Tina is correct that they have indeed requested permission.
However, what the original poster should have written is "by including
their FAQs without first _obtaining_ permission." What is required to
reproduce and distribute copyrighted work is being authorized by the
copyright holder. That means, not merely asking permission, but actually
obtaining permission. And while they have asked, they have not obtained.
Any reproduction and distribution will still be an infringement,
notwithstanding that they have asked permission.
> They are making an
> assumption that most people don't mind the inclusion of their FAQ on the
> CD but expressly informing the maintainers of the FAQs of their intention
> to publish and giving them the option of saying 'I don't want you making
> money off my FAQ'. Given that this is (at least!) the second time that
> they are publishing this CD, I think they probably have a fair amount of
> evidence of the number of people who actually mind having had their FAQs
> published.
There is a point here -- there are equitable doctrines called "laches"
and "equitable estoppel" that basically mean that you can't sit on your
rights while allowing another to dig himself in a deeper hole. This isn't
unique to copyright law: if you watch a neighbor build his swimming pool
over the edge of his property line, unaware that he's building onto your
land, and counting on your silence, you can't quitely wait until he's done
and then sue for a court order to have it torn down. But you will still
be able to collect damages for the use of your property.
Either or both of these doctrines may be applicable here. But, at least
laches requires that the defendant had relied on the plaintiff's silence
to determine that he was doing no wrong. That doesn't seem applicable
here, since the CD-ROM publisher is quite aware that it has no rights to
the FAQs. Furthermore, there are other equitable doctrines, too, such as
"unclean hands." If the neighbor knew he was building on your land and
engaging in a knowing wrongful trespass, he can't get away with saying
that you didn't stop him.
All these doctrines are very fact-dependent, and it's anyone's guess how
it would come out in an actual court battle.
> 3. 'This behavior is unethical...'
>
> I'm sorry, but I just don't see it.
No comment. Ethics are for each to decide, not a place for lawyers to
assert their opinions as truths. (Yes, I can already see the cute
rejoiners coming. Do the list a favor and mail them to me directly
unless they're part of a larger on-point message.)
For my part, the only worry I have about CD-ROM makers copying my work is
that, basically, if money is being made from my sweat, I want something in
return, if for no other reason than as a thank you. I have always
permitted my FAQ to be copied in exchange for a copy of the work in which
it is copied. I would do the same for the CD-ROM maker.
There are a couple problems with this particular party. First, they did
not initially ask permission, they just took without asking. I think
that that's wrong. I wouldn't do it, and I wouldn't expect others to do
it to me. And, as I made clear above, it's a tort.
Second, now that they're getting around to asking permission, they appear
to be setting this up so that each FAQ maintainer must monitor the company
to see when the CD-ROM comes out, and then they will provide a copy only
upon asking. That stinks. If they want to be reputable publishers, they
should act as reputable publishers. Legally, that means that they should
publish an author's work only after obtaining permission. Having obtained
permission, they should not adopt the position that the author will not
obtain his or her compensation unless he notices the work being used and
asks for it. Rather, they should obtain the author's mailing address and
send the compensation (in this case, the CD-ROM) at the time of
publication, if not shortly before. Anything less is, in my book,
unethical and unprofessional behavior.
Your ethics and opinions may vary. But when it's my work being copied
and distributed, it's my opinions that matter with respect to that work.
-- Terry Carroll | Attorney at Law | Santa Clara, CA | Quayle/Bono in '96. carrollt@netcom.com |
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