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Re: copyright and the list



On Sun, 25 Jun 2000, Susan Knoer wrote:

> Fair
> use doesn't allow whole messages to be forwarded to other listserves, it
> allows you to quote a portion or refer to a URL.  While authors to a
> list may be more permissive of extensive use, it doesn't diminish the
> author's legal rights.

I certainly wasn't (and I doubt David Wallace was) arguing that forwarding
a complete posting from one list to another in any way dimishes the
author's legal copyright to the message. The point here is *not* whether
or not an author to a list posting has copyright in her/his posting, s/he
clearly does!

The point is that based on the following tests that section 107 of the US
Code Title 17 spells out, it seems to me that SAA is on solid ground not
taking the most conservative possible stance on the forwarding of messages
in its "Terms of Participation in the A&A List" document:

"In determining whether the use made of a work in any particular case is a
fair use the factors to be considered shall include
1. the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes; [does the
latter characterize the A&A list? I hope so!]
... AND
4. the effect of the use upon the potential market for or value of the
copyrighted work."

>    I'm not sure that traditional copyright is relevant to electronic
> media, but it is the law.  We may be amenable to passing along info to
> anyone who can use it, but it doesn't exempt us from the law, whether we
> care or not.  Anyone who believes that "Information wants to be free"
> may engage in civil disobedience, but shouldn't expect official
> sanction.

I would still maintain that there is a pretty vast gulf between "official
sanction" and taking the most conservative possible stance on fair use in
the SAA "Terms" document.

>   Since I deal with copyright questions and indemnification on a daily
> basis, I can appreciate that neither SAA or the list manager should be
> in the position of defining Fair Use or indemnifying the posters.  I
> think it's a fairly tactful way to remind us that we alone are
> responsible for our postings, whether they include quotes or not.

I guess I think there is also a pretty vast gulf between what Susan may do
in terms of her particular institution and what SAA might do in terms of
supporting a public discussion listserv for archivists and other
interested parties. No problem with SAA's "Terms" document stating that
individuals are responsible for their own postings, that SAA and the
listserv owner will not indemnify those who post to the list, that
listserv users should be mindful of copyright, that message posters have
copyright in their messages, and all that. I would just like to see the
"Terms" document take a less conservative, less chilling stance on the
reposting of messages or portions thereof for the purposes of commentary
and non-commercial information sharing. Until a court case concerning
forwarding of listserv messages generates a ruling otherwise, I think that
section 107 of US Code Title 17 is supportive of such a stance.

--
Bill Landis__________________________|_____________________blandis@uci.edu
Manuscripts Librarian                |                   The UCI Libraries
Department of Special Collections    |            University of California
949 824.3113                         |                      P.O. Box 19557
949 824.2472 FAX                     |              Irvine, CA  92623-9557

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