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

No pissing contest (besides, I'm upwind... <vbg>)

My main premise, which got buried in all the gobblygook, is that even if
this type of material is copyrighted/copyrightable, the true protection
envisioned under the law is unavailable to most writers, in the sense that
the average citizen cannot afford to pursue legal remedies to potential
infringement.  This is especially true where the medium is electronic and
gray areas so large.

So my point was more of a warning to the general audience - don't expect
legal protection of your material if you've only published in a forum like
Ridecamp.  You MAY ultimately be protected, but the legal fees will be quite
high and, in my opinion, a pretty big crapshoot.

The modifications to copyright law being contemplated by Congress are a far
larger threat to our "freedom" than might appear at first glance.

Emails can be traced to a certain point, the Melissa case being a good
example (although I believe the investigators got lucky).  However, proving
CONTENT ownership in an electronic forum is still nebulous regardless which
side of the ownership fence one is on.

And finally, no, being a professional instigator doesn't pay well but the
benefits are great...  :-)

Mike Sofen
Redmond, WA

-----Original Message-----
From: Linda B. Merims []
Sent: Tuesday, April 13, 1999 8:59 AM
Subject: RC: RE: Phil Gardner's letter in April EN Mailbag

I am aware that this is starting to degenerate into a pissing
contest, but I exercise my right to respond to Mike's response
to my response to his original response to Joe.  I also think
it may illuminate some issues about intellectual property
on the Internet that all Ridecamp posters and readers should
be aware of.

To respond to Mike...

As is usual in debates of this sort, we are talking past each other.

There are a number of issues getting mixed up here:

1.  Was Joe Long's post copyrighted?

Yes.  Absolutely.  Sorry, Mike, but there is no question of it.

2.  Did EN have the right to reprint excerpts from Joe's Ridecamp post
without his permission?

I maintain that they did have the right to reprint short excerpts
from Joe's post without his permission under the legal doctrine of
"fair use."

(As we have learned, it wasn't Phil who quoted Joe, it was somebody
at AERC and/or EN.  Since they were reprinting Phil's response to Joe,
they needed to show something of what it was Phil was responding *to*.
Doyle Patrick, the AERC Executive Director, seems to be the person who
instigated this entire episode.)

In some ways, "fair use"'s insistence on short excerpts contributed
to the problem:  if they had reprinted the entire original, lengthy
post they would have had to ask Joe's permission and no misunderstandings
or editorial bias could have crept in.

3.  Was EN *right* to reprint excerpts from Joe's Ridecamp post
without his permission.

Here we are dealing with ethics, not copyright law.  I think it was
dirty pool to quote Joe without notifying him or giving him the
opportunity for a rebuttal.  Wouldn't we all like to be able to
edit our debating opponent's arguments to suit ourselves?  What
we had here was an "unfair fair use."  In my book, EN still owes Joe
the editorial space for a rebuttal.

I also consider it an ominous sign that voicing a simple policy
disagreement with an organization is viewed as damaging to the
organization.  Anybody who has dealt with the show people in
the American Morgan Horse Association (AMHA) knows all about that

What the Internet has done is give people like Joe the way to reach
many of their peers *without* having to have the cooperation of
the powers-that-be who control the organization's official communication
organs.  And, believe me, that makes a lot of organizations feel
very insecure indeed!

4.  Has the Internet made it easier to violate copyright now than
it used to be?

You won't get an argument from me on this.  Of course it has become
easier.  Vastly easier.  But so did the advent of the ditto, mimeograph,
and XEROX(R) machines, and copyright law did not vanish because of it.

It is also interesting that so many more people have access to
copyrighted material--as readers and potential publishers--who have no
knowledge of copyright law.  I was surprised to see several complete
posts I had sent to the Morgan list show up in the British Morgan Horse
Association's annual yearbook.  I complained to the editor, who turned
out to be simply unaware that Internet posts are copyrighted and require
the author's permission to reprint.  I got two years' membership in the
BMHA and all BMHA newsletters and yearbooks in recompense, and the editor
now knows to ask first.

Most people and publications are honest and only need to have copyright
explained to them and they are eager to comply.

5.  Because one can not absolutely prove the source of an e-mail,
no law suit against a copyright violator can succeed.

(If you are unhappy with my formulation of your position, you are
welcome to reformulate it.)

Interesting argument.  I wonder if the person who sent the original
Melissa virus message could have used that defense before he upped and
confessed :-)

Three things:

a) I'm not sure from which "side" you are making this argument.  Are
you saying that the defendant would argue that it wasn't a copyright
violation because the person who sent the original message cannot
prove, beyond all doubt, that they were the original author?  Or
that the defendant would argue that they didn't committ the copyright
violation because somebody had forged the mail to make it look like
it came from them, and there was no way to disprove their assertion
of forgery?

b) This has the flavor of a "sea lawyer" argument to it.  Perhaps you
know more about the real guts of e-mail tracing than I do, Michael, but
I was under the impression that it is possible to trace an e-mail back
to its source, including the phone number the dialed in to the ISP
from which the mail was sent, if you have the cooperation of the ISPs
along the way.  Yes, you can forge everything in a header--except the
last hand-off to the current machine.  And because the last footprint
is there, it is possible to retrace all the previous footprints (assuming
the logs are kept that long, which they may not be).

But even then, I'm not sure how such an argument is any different from
a copyright violator claiming "you can't prove I was the one using the
xerox machine," or "you can't prove you were the first person in the
history of the world to write that piece."

c) Finally, although an interesting argument, it doesn't seem to apply to
this particular situation.  Nobody, including EN, is disputing that Joe
the original message.  Nobody is disputing that it was EN that reprinted
excerpts of it.  Authorship and reprint authentication simply aren't at
issue in this case.

6.  You also bring up the notion of "commercial use" of a copyrighted work
being significant.

You are right.  Up until now, all remedies for copyright violation were
based on *civil* penalities.  If your copyright was violated, your only
recourse was a civil law suit.  You were more likely to win the civil
law suit if you could prove monetary damages.  ("If so-and-so hadn't
copied my video, I would have made $xxxx selling it myself.")  But
that was not and never was the only basis for rewarding damages in
a civil suit.  Punitive damages are routinely awarded for copyright

(And incidentally, vis-a-vis your position on e-mail authorship being
difficult to prove, as we learned with OJ, in civil suits one doesn't
have to prove one's case "beyond a reasonable shadow of a doubt."  One
only needs preponderance of the evidence.)

The icing on the cake is that the entertainment industry is promoting
a bill in Congress that has the backing of the Clinton administration
that would make copyright violations a *criminal* offense.  You won't
need to sue--you can have the cops arrest the person/organization
and have him tried as a criminal with potential jail time or fines
if found guilty.  The entertainment industry is also trying to
whittle "fair use" down to just about nothing.  The bill is
ardently opposed by groups like the Electronic Freedom Foundation.
I've lost track of this bill.  For all I know, it could already have

I think we see each other's positions, Mike.  I am just not as willing
to abandon the idea of copyright (even though I don't think it applies
in this particular case) as you seemed to be in your original response
to Joe because modern technology makes it so easy to violate.

Brave New World...

>Mike Sofen
>Professional Instigator  :-)

Sounds like a good job, if you can get it.  How's the pay?

Linda B. Merims
Double Extra Professional Writer
Massachusetts, USA

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