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RE: RC: RE: Phil Gardner's letter in April EN Mailbag

Your points are valid, but legally unsupportable, and unpractical.  If the
source of an email cannot be proven then how might someone actually claim
damage in a court?  After all, copyrights were invented so that authors had
legal remedy in a court of law.  How will the courts decide what to do?

This is a classic case of apparent protection without real protection.  When
I want to copyright anything of value I ALWAYS file a copyright app with the
Library of Congress.  Then it doesn't matter where I publish the content (as
long as I cite the copyright), and I have a real legal leg to stand on.
Your assertion that "you wrote it, you own it" becomes quite a pile of goo
when the real author cannot be determined beyond a reasonable shadow of

It was UNETHICAL to use Joe's letter without permission, and to use it in a
way that changed its meaning was especially vulgar.  However, even if we
could call it copyright infringement, no commercial use was made of the
content (the AERC did not and will not materially benefit from it) and so
even in a court of law, the only real case Joe would have would be slander
or libel or other issue that doesn't relate to copyright at all.  What
monetary damages might he claim?

Look at the horrid problems facing the music industry with all their
"content" (music) being available for free via websites.  Now there's a
situation of clear and significant copyright violation and the music
industry, with all of their legal horsepower, is unable to stop it.  Their
legal horsepower is formidable - they were the ones, when the CD format was
first being created, that insisted on the format being read-only to prevent
digital copying.  It is only now, some 15 years later, that recordable CDs
are available at the consumer level.  Just to put things in perspective.

Mike Sofen
Professional Instigator  :-)

-----Original Message-----
From: Linda B. Merims []
Sent: Saturday, April 10, 1999 11:43 PM
Subject: RC: RC: RE: Phil Gardner's letter in April EN Mailbag

Mike Sofen wrote:
> Joe, I agree with all of your opinions re: fees, and am glad you expressed
> them so clearly.  One small point on copyrights, however - even though
> technically it may appear you can copyright your email, in reality all
> emails and newsgroup chat are automatically in the public domain and thus
> unavailable to copyright.
> Since emails can be easily impersonated (it is a trivial thing to send you
> email as if I were Bill Clinton and originating from the White House),
> is no real way to prove ownership/authorship.  I expect to see more of
> type of incident in the future.
> Mike

Completely false.

That one cannot necessarily authenticate the actual source of an e-mail
(at least not without extreme difficulty) says nothing whatsoever about
whether or not its content is copyrighted.  Absent any other agreements
(for example, some "free" list services like assert a copyright
in their user agreement on all traffic that passes through their servers)
if you wrote it, you own it.

If Phil Gardner has any legal leg to stand on, it comes under the
heading of "fair use," *not* that Joe's statements were in the public
domain.  One of fair use's aspects is that it is reasonable to quote
small excerpts from copyrighted material for illustrative purposes.
Gardner probably had the right to do what he did, although one could
object to it as kind of dirty pool, and one could criticize the
editors at _Endurance News_ for letting Gardner dictate the content
and venue for the debate, without notifying Joe that they were going
to do this.  They at least owe Joe the editorial space for a rebuttal.

Linda B. Merims
Professional Writer
Massachusetts, USA

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