Slashdot Mirror
Can Copyright Apply to SPAM?
Richard W.M. Jones asks: "The Great Spam
Archive received a legal threat today. A
'lawyer' claims that some spam displayed at the
site is copyright, and must be removed.
I'm claiming it's fair use for me to display
an unwanted email sent to thousands (probably millions)
of people at random. Is this fair use, or do they
really have a case?"
Just because you send something to 10k or 10 million people at random does not give each one of those people full rights over your work. It is still your work, therefore you still have full rights to it. If you choose to spam tons of people with your works, that is your right. If you then decide to restrict who else gets to view your works and in what medium, that is your right.
On another note, this guy has clearly never heard of the philosophy: "No publicity is bad publicity."
Just because something is unsolicited doesn't mean the owner has abandoned their copyright and the work has entered the public domain.
There is plenty of precedent - billboards and posters and broadcast advertisments (radio and television) are all unsolicited yet few would deny that they are still copyrighted by their owners.
Well, I don't know, MAYBE YOU SHOULD ASK A LAWYER. Sheesh, when will people learn?
--sdem
since your asking my opinion, I'd have to say that unfortunately I think he does. Really I'd say you should probably ask a lawyer.
Tell the 'lawyer' that you need definitive proof of the identity of the original author, and that said 'author' must personally claim copyright infrigement. If the original spammer want to claim authorship of the original spam, fine. Otherwise, I'll bet you never hear from said 'lawyer' again.
You are being MICROattacked, from various angles, in a SOFT manner.
if the email doesn't say Copyright or have the © symbol, along with the year of publication, and the name of the owner of the copyright, it's not protected.
even if it did, they have to prove their email was a new work, and that a commercial email broadcast to millions of people deserves copyright protection. and even if it does, there are limits according to Â107 (Limitations on exclusive rights via Fair Use)
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
so they can fuck themselves.
counter threat, you have your tv actor lawyer* send them a letter stating that your web page content on your site including your fair use critique of their spam is entirely copyrighted and they didn't have permission from you in writing and triplicate and signed by their momma to download and copy it and etc.
--also, you were so surprised by their missive that it caused you to slip and fall and now you have a case of the painful suffering whiplashed emotional distress
whut the heck it's only an email....
*Ian Nathaniel Louer is his name.....
If you write a book and send it to millions of random people, have you forfeited your copyright? No.
If you write a program, license it under the GPL, and millions of random people download it, do you forfeit your copyright? No.
If you write an email that contains an original work, however shitty that work might be, you own the copyright on it, regardless of how it's distributed.
IANAL, but I do have some common sense.
"And like that
Ok. Assuming you don't just want to delete the spam (i.e. you wish to make things complicated for yourself). You should do the following:
1. Consult Copyright.gov
a. Notably, see Circular 21 on page 12 they cover Reproduction by Libraries and Archives.
b. Also see FL 102 on Fair Use.
2. Consult a Lawyer. After reading that, and perhaps researching the issue some more, if you feel that you are still within your fair use rights and you wish to stand by your ethics and values that make you want to keep the spam on the website, Then you really should consider contacting a lawyer. You could try and just ignore the email. I would request that they send you an official letter (via registered mail) stating the legal reasons for the threat.
Also, Note: Contrary to what some comments on this site indicate, the spammer does not have to include a copyright notice on the email. This is especially true if you consider the act of emailing to be a form of publishing the message. See http://www.copyright.gov/circs/circ1.html#hsc
Wow, I am impressed. This is beautifully clever -- enforcing a copyright on a message no one wants, because if you don't it might get harder to force the same message on other people. Elegant. Annoying.
:) I'll relay anything I find.
I assume you rec'd a C&D letter, or was the contact more informal (you seem unpersauded the person really was a lawyer)? Details? Did they cite legal authority?
Check out the materials at chillingeffects.org, it should address your basic concerns but may not answer your specific question.
Personally, FWIW, I think you're OK, both under fair use (you are basically an online library, though it's not quite that simple) and the fact they forced you to take it (waiver?), but before you look at the merits the realistic issue is whether this could even possibly go to court. Even if you will win, that's where $$$ comes in. Often they are bluffing: litigation costs money, but a quick cheap threat often works, so why not take a stab at it?
I'm sure I've seen this question addressed online -- look around.
This is not legal advice, but it doesn't sound like you yet need it. (That wasn't legal advice, either.
Here's a thought...what about putting up a page with a list of E-Mail addresses stating that "By sending E-Mail to this address/addresses you are giving up any and all claims to copyright..."
Make it easy to add your E-Mail address to the database and soon the spammers will either have to remove all of those addresses from their spam lists...more cost to them, and ultimately accomplishes the desired effect (no more spam)...or they will have to give up on the whole copyright thing...
The reason I mention this is that magazines display this kind of notice for their mailing addresses ("send your pictures to us and we'll publish them"), and I'm sure they have alot of experience dealing with such issues.
Then again, I thought that copyright law required you to promemently display a copyright notice in the origonal document...
</IANAL>
I'd put the whole damned thing inside Freenet.
Although they can't copyright the subject line trick of using all upper case.
In the future, I would set up an account that you do not use for real email. Use this account in some newsgroup postings and on the web to attract email harvesters. (you probably already do this part...)
For every email you receive auto-reply with a notice that by sending to that email address the spammer grants publication rights to the Great Spam Archive. (you may wish to be "fair" and give the spammer a chance to opt-out of this)
This should help resolve issues like this.
The first question is, "Does copyright apply to spam?" The answer, of course, is yes. Anybody who writes anything automatically gets a copyright on that thing. (This is true in the biggest part of the world; the laws of your jurisdiction may vary. But since the question was submitted in English, it's fair to assume that we're talking about U.S. or similar copyright law here.) That applies to books, magazine articles, letters, pamphlets, Slashdot postings, grocery lists, and, yes, spam.
The second question is, "Is the publication of this work on a web site a fair use?" That's harder to answer. One small part of the answer, though, is easy: the fact that the author of the spam in question sent it to (possibly) millions of people indiscriminately does not give anyone else the right to republish the spam without the author's permission. You can't implicitly put a work into the public domain, even if you gave everybody in the world a copy. So the simple fact that this is bulk email doesn't invalidate the author's claim of copyright. But if your use is fair, you don't need the author's permission. The question, then, is whether publishing the spam in this way and on this site is a fair use.
The law (17 U.S.C. 107) defines fair use. It says, in relevant part, "[T]he fair use of a copyrighted work [...] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." So the purpose of the use is relevant to the question of whether the use is fair.
The maintainer of the spam archive in question says, "I'm making this archive available in the hope that it will draw attention to the enormous problem that spam poses to ordinary Internet users, and to allow people to analyse this junk in the hope that one day it can be prevented by both technical and legal means." So the maintainer's purpose appears to be primarily political: he wants to stop spam, and he uses his archive as a tool for doing so. One could also say that the archive exists as an educational site, to provide information on the various techniques used by spammers in constructing their messages. One could also say that the purpose of the site is criticism: criticism of the spammers and their methods. So the purpose of the archive seems to be, at least generally, in line with the purposes outlined in the statute.
That test passed, we have to look at the rest of the statute, which names criteria to be used for judging whether a specific use is fair. The law says: The purpose of this use is clearly noncommercial; the maintainer of the site does not make any commercial use of the archive at all.
The nature of the work is an advertisement; as such, it's difficult to imagine how the value of the work could be harmed by republishing it. Read on for more about this, though.
The archive reproduces the entire spam, including Internet message headers, which is a strike against the use being fair. The intent of the law is to allow portions of copyrighted works to be used without restriction for purposes like comment and education; without this clause, nobody would ever be able to quote anybody else without their permission. Reproducing the entire work is beyond the intent of this law. However, the fact that the works are reproduced in full is a consequence of the nature of the archive. So this criterion is a grey issue.
Finally, we have the kicker: "the effect of the use upon the potential market for or value of the copyrighted work." As an advertisement, the value of the work is directly proportional to its credibility. If you damage the credibility of the advertisement, you reduce its effectiveness, which reduces its value to the author. Publishing this advertisement in an archive of spam clearly associates-- even equates-- this work with ads for such products as "herbal Viagra," penis enlargement methods, and pornography, as well as out-and-out fraud. This association-- accurate or otherwise-- is obviously damaging to the value of the advertisement to the author.
Note also that we're not concerned here with absolute credibility. Even if the message in question is obviously not credible to a reasonable person, it still has some baseline value to the author. We can only be concerned with whether this use reduces the value, irrespective of what that initial value might have been.
If I were deciding this question, I'd have to rule that this use is not fair, because it significantly reduces the value of the work to the author. Therefore it is not permitted for this work to be published without the permission of the author, and the maintainer of the archive should remove the message in question immediately.
One more note: the maintainer of the archive says, on the front page, "These messages [are] in the public domain. You may use them for whatever reasons you wish." This is absolutely not true. Nothing is in the public domain unless and until its copyright expires or it is specifically placed there by the author or copyright holder. The maintainer of the archive needs to be aware of this. I'm not saying he should shut his archive down; chances are many of the messages contained in it will never be challenged on copyright grounds. But if the maintainer thinks that he's free and clear to do whatever he wants with these messages, he's setting himself up for a harsh and expensive firsthand lesson on copyright law.
I write in my journal
One route would be to check the law of the state where the spam was received. About 15 states have such laws, including populous CA. If the spam broke the law, I would suggest that forfeits copyright, at least as to publicizing the offending communication. It would be a little odd to send someone an illegal communication and then claim copyright prevented them from sharing it with others. (I don't think you could turn around and sell copies; but if you do figure out a way to sell spam please contact me!)
But checking each message against the law would be a pain to administer and would exclude many of your samples. Better to address the fair use angle, which is not a forfeiture of copyright but an exception to it.
IANAL
This issue has come up with web pages in the past in relation to services that cache pages like Google.
While I don't think that it has been tested in court there is an implicit right to save copy and redistribute all or parts of the work because of the architecture of The Internet. SMTP servers, POP servers, IMAP servers, even TCP and IP all make copies of some or all of the data and then send it on to another computer, often not the destination computer.
Also email addresses don't always represent a one to one relation ship, some addresses may send an email to multiple people, such as mailing lists. Additionally mailing lists often keep archives of messages sent to that list, further muddying the waters.
I would think unless that can prove that they knew who every one they sent the message to was then they can't say they haven't implicitly given up some of their rights when the released the message to The Internet.
considering what i posted ages ago, i will now commence to predict the weather for the upcoming 3 years...
f64 : i have a lawyer and i'm not afraid of using it!
I disagree on the lattermost point, as to reducing the value of the work. Usually that point is oriented more towards whether the defendant's "fair use" undermines demand for the original in the marketplace. If posting the spam in an unfortunate context tends to tarnish the reputation of the spammer, that suggests a defamation problem. If the librarian states that he thinks the spam is bad or illegal or whatever, he must be careful to identify his statement as mere opinions. (Better to say nothing.)
Besides, the librarian here is expressly posting the spam as an exercise of criticism, a free speech interest that fair use is meant to address. It's OK to use a work to make the author look bad. And here, it really is necessary for the librarian to reproduce the spam in whole. Excerpts would likely not convey enough information for others to identify which spam is being discussed. Indeed, to publish an excerpt might render the criticism of the entire spam unfair but taking that portion out of context.
I agree that copyright remains intact, and the librarian can't declare it public domain. Indeed it would be better to remind the viewer that the copyright status is unknown. The possible exception I wonder about is where the claim of copyright violates public policy, as where the work is used as part of a crime. For example, it's hard to imagine a kidnapper suing the newspaper for publishing his ransom note, written in iambic pentameter.
These are just some thoughts; again, I suspect this problem has been explored before. I'm not attempting to practice law here.
You need the handy dandy "Fair Use" conversion algorithm.
The algorithm is open source, and it works like this:
1. Split the entire spam into paragraphs.
2. Display 2 paragraphs.
3. Credit the original author appropriately.
4. Add one sentence of critique, preferably in italics. And call them cocksuckers as many times as you can without becoming tedious.
5. Repeat steps 2 - 5 until you run out of paragraphs.
Cheers!
Ed R.Zahurak
You know, oblivion keeps looking better every day.
Isn't what the spammer doing already illegal? To some extent. I mean, they are sending you unsoliciated mail. But I mean, why do we gripe about spam. When we recieve enough "junk mail" in the real Postal Service mail.
Maybe, both should be considered illegal. Like the gov't is making it.
Free means no restrictions, ironic the FSF's GPL forces restrictions, isn't it? What's your definition of free?
If the spammer sent the spam to you, I think you can pretty much do whatever you want with it. I have no idea where email I've sent will end up - maybe in an email program, or maybe on a webpage. Maybe to someone's pager. If I'm afraid it's going to be automatically posted to a website, or displayed on a huge billboard in Time's Square, then I shouldn't send it unsolicited. "Email" is just a protocol for sending data; if you send data that you claim copyright on, to someone/someplace totally random, you're pretty much giving up your rights for control over that work.
Of course, "IANAL", and you should get one ASAP if you are really worried.
My apologies, I did not first look at the "letter" you received from the "lawyer," attached below in complete defiance of any applicable copyright. Nyahhh.
... well, let's not dignify this. The legal Q raised is pretty interesting, but will wait for another day.
h tm l
This person is not a lawyer. The lack of a name -- for either lawyer or client -- and staggering number of typographical errors and lack of even verb agreement (owner/have -- plus it's)
Write back to these people if you must, and ask if they'd be interesting in buying your new line of nitric acid suppositories. Maybe let AOL know the account is being used to send anonymous harassing emails by someone impersonating a lawyer.
****
From: Legalservicesdp@aol.com
Date: Wed, 27 Nov 2002 14:02:52 EST
Subject: Copyright Infringement
To: Rich
Dear Mr. Rich:
You have stored on your web site, and published without permission, the
enclosed copyright protected documents, at
http://www.annexia.org/spam/messages/Junk0/037.
The owner of these documents have requested that you remove them
immediately, as it's publication is Copyright Infringement Please respond
within 10 days to inform us you have removed the documents.
Sincerely,
Legal Services
Well, in the 5 years I practiced law before I decided I shoulda stayed a techie-type, I never heard of a real lawyer sending out correspondence like this without signing his/her name to it ... so I seriously doubt that it's even FROM a lawyer.
First, I would write back to "Legalservicesdp@aol.com" and call their bluff. Tell them that you will not even CONSIDER honoring their request until you receive their request by Certified Mail on firm letterhead.
Second, I would forward the e-mail to abuse@aol.com on the basis that whoever this is seems to be trying to represent themselves as a service provided by AOL to their members. If that's really what is going on, it could cost "Legalservicesdp" their AOL account.
Third, IF you receive a certified letter from someone that you can v</Disclaimer>erifiy is really a lawyer, I'd write back to them asserting that your use of the spam on your website constitutes public comment of an educational nature on the content of the document in question and is, therefore, protected under the doctrine of "fair use."
Fourth, if they sue for copyright infringement, have your lawyer move for sanctions under federal rule of civil procedure 11, because it is my opinion that this is indeed fair use. It is roughly the equivalent of making a single copy of the "work" and posting it in a public place. After you bring to their attention your intention to defend on that basis I think any lawsuit they might file would be easily deemed frivolous.
<Disclaimer> I am not currently engaged in the practice of law and my license is not currently active. I do not claim any special expertise in the area of intellectual property law.
Accept any advice you receive from me or from anyone else claiming to be a lawyer in this forum at your own risk. The only way to be sure you are receiving high-quality legal advice is to consult with an attorney in active practice in the jurisdiction where you reside.</Disclaimer>
utter rubbish
No, but they could patent that: "A technique for indicating the relative value of Internet e-mail through subject line modification."
The email he has is from Legalservicesdp@aol.com.
A few (minor) points:
1. The person is obviously prentending to be from AOL (the correct email is AOLLegal)
2. He doesn't include his name or company
3. Bad grammer, lawyers take this VERY seriously!
4. The fact that is was sent from an AOL account
My $0.02: This one is safe to ignore until you get real legal documents.
X(7): A program for managing terminal windows. See also screen(1).
When you post to usenet, or any public board, even though you still retain your copyright, the act of placing the post in the public grants implied permission to have the post in the public.
:)
Granted email normally is not a public medium, but email sent to millions at random with no descresion as to where it is sent is pretty close to "the public"
I dont know if that would fly but its worth a shot.
If it doesnt, then I would counter that my email address is a copyrighted work and as long as they did not give the spammer permission to obtain the copy (in their email list) they are just as guilty as you are.
I do know if a person sends me an email directly, and they do not say specifically in the email that it is confidential, I am allowed to post it IE on my website.
By sending it to me I have been given an implied licence to use that email myself.
The problem here is the spam collecting website is most likely not the one the email was sent to, so they cant use that reasoning.
One could also say they told the spammers in a reply to not send any further emails or you will publish them publically, and by doing so they grant you permission to do so.
If the spammer has forged from headers, its not your problem the email never made it there.
Well, technically i guess it is, but id hope a judge would see the spammer as commiting fraud instead of trying to pin it on you.
In the end you can always go over and beat the spammers skull in with a crowbar
(Hey, what do you expect from slashdot legal advice}
You know, if they want to claim copyright infringement they have to identify themselves to go to court with it. I can then just make an archive of all the names and addresses from the court records on who is producing spam. I think I might just create a spam archive and hope some spammers sue me.
I'm sure they'd love their names and addresses and sworn court documents affirming they are the source of spam to be posted on the internet.
My understanding is that the Archive is explicitly provided as a nonprofit research tool for testing the effectiveness of certain computer algorithms.
Perhaps the interface could be redesigned to favor the provision of aggregate data (an mbox archive of spam fitting a profile or search, for example) and make it less convenient to identify individual spams out of this context. This would preserve the research aims while making the overall intent of the archive more clearly in line with fair use doctrine.
Insofar as the archivist has shown a willingness to remove messages sent by people who identify themselves and provide a reasonable arguement for the removal, I doubt this challenge could stand up to a legal test.
second argument:
It is certainly not reasonable to allow any unidentified person to affect the publication of copyrighted works. Since the intent of the copyright holder is unknown in this case, the status quo is the safest action.
For instance, I could write the following message to Stephen King's publisher on a postcard (SK chosen because he retains copyright to much of his published work):
If the publisher complied with the request in this unsigned missive, he would be in serious trouble. An unsigned and insecure document cannot be trusted as the basis for legal decisions.
In fact, this postcard, delivered through standard mail and bearing Stephen King's actual return address and an assertion that it was authored by Stephen King would probably still be insufficient. This is why legal documents are sent via certified mail in sealed envelopes.
--- php: perl hates people
Well the original message on the site does have a copyright notice at the bottom.
If this trend continues then maybe we will get all spammers putting copyright notices on the bottom of their messages.
All we need to do then is block all messages with copyright symbols in them.
Nice =o)
Aren't the people from the Electronic Freedom Foundation the ones to ask? They should love this kind of stuff.
PLEASE PLEASE ignore advice that the email you got is probably not from a real lawyer. They are probably right but it is only a matter of time before you do, seek advice NOW. The disclaimer you got up at the moment is just plain wrong. If you are going to fight a million dollar industry you need legal backing.
Fair use of copyrighted material is a hotbed. Anyone remember that fuss with publishing documents by the scientology church? In email it could really get weird. If I forward a mail to abuse@isp.com am I infringing the copyright?
Anyway I am serious about getting help. You are taking on people who happily send porn to childeren, make claims that would have them in court if they printed them on paper and ride on the back of everyone else to make their profits.
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
Maaaaybe ... but for these clowns isn't jail too nice? Bring back the pillory. (joking)
It's kind of hard to enforce a notice given after the fact.
Donate background CPU time to fight cancer.
This is fair use as it is an issue of public import. In addition, you can counterclaim for tresspass to chattel and the TCPA. In your discovery, you can get all their information setting up a bigger counterclaim then any copyright claim could be.
Let them try to come after me. I'd drop them like a bad habbit.
Fight Spammers!
If the spam is fraudulent then they likely cannot claim Copyright even if they wanted to.
And if they wanted to they would be rather stupidas you would have sufficient information to have them charged.
If it is NOT fraudulent, or you have no reason to believe it is then yes, Advertising copy is copyrighted like anything else, automatically and all rules apply.
IANAL.
If they want to go to extremes with this, maybe I can go another step further and claim copyright on my email address.
Now - if they try sending me messages using that address, I'll just have to send them a threatening letter.
Hmmm... but how would I get the letter to them without potentially committing the same thing?
(Spudley Strikes Again!)
Supposing I'm sent a spam message and deduce from the headers that it's most likely point of origin was a mail server in a particular domain. I then forward the mail, including all headers as per standing instructions, to the abuse@ address of that domain. The spammer finds out, due to said domain cutting off their connection, and then sues me for copyright violation for reproducing their copyrighted work and forwarding it without permission from the copyright holder.
If the situation discussed here fails, i.e. the spammers prevail, how can I then defend myself against in the situation I described above?
We could be looking at a dangerous precedent here.
Stephen
"Don't write down to your readers, the only people less intelligent than you can't read" - Sign on Newspaper Office Wall
Correct me if I'm wrong, but 'fair use' does include the right to quote parts of a work for the purposes of reporting on it, etc.
Now I interpret this site as reporting on the spam, so therefore if you were to use parts of each message rather than the whole thing, you ought to be off the hook.
Of course, I realise that this kinda defeats the point of the site, but it's an something to think about (even if it's just a last resort).
(Spudley Strikes Again!)
I like p0rno
Copyright by Mary Will Grow, 2002.
(If I ever see any of you post that sentence without my permission you will face the awesome power of the Yahoo legal team, reachable at Sugarti^H^H^H^H^H^HImaLawyer550874@yahoo.com)
Why stick up for big business?
Go ahead with the spam database and bait the copyright holders. Every time they send a letter requsting that their "works" be removed from the database, add their names and addresses to a list of known spammers, also available publically on the site. Names and addresses are not copyright. Let's see them get out of that one.
Stick Men
It seems that various spamhaus operators are a litigious bunch. They have regularly sued blackhole lists claiming their spam to be legal, even though at least one Australian case was thrown out of court. And it seems as though for every actual threatening letter sent by an actual lawyer, it seems they send about a dozen (or more) that clearly are not.
As it happens, this particular case appears to be one of the latter. It costs them nothing to try, but it costs the recipient time in making the distinction. Typical for spam.
I don't know where the physical location of the spam archive is, but if it is located in a jurisdiction that actually has some meaningful anti-spam laws, then chances are good that the referenced 'copyright' spam is illegal - in which case claiming copyright should allow an immediate countersuit (by a real lawyer, even) since the identity of the party responsible for sending it is now firmly established.
( I can't resist joking: Nobody expected this spammish imposition.)
Liquor
Sanity is a highly overrated commodity.
What's next? Copyrighted viruses?
If you read the link, you'd obviously see that the 'legal notice' is a bunch of bullshit. Honestly, what pompus-ass lawyer would not write his 'esteemed' name on a letter?
Billboard analogies isn't applicable--billboards are to web ads as spam is to unsolicited snail mail.
IANAL, of course.
While I doubt that many spammers would actually sue, and while I doubt many judges would be sympathetic to spammers (no juries for copyright cases), copyright law applies.
There are some other complications that will surely arise, including copyright and trademark claims by non-spammers whose rights are impacted by spammers.
For example, we all know that anti-virus and anti-spamming software from major companies is frequently touted in spam emails, always against the instructions of the companies involved (they claim to terminate any affiliates who spam). Arguably, putting "Norton Anti-Virus" or similar things into a public list of spams, might offend those companies' trademark attorneys, though I don't think they could legally stop you from accurately reporting.
Another issue could be someone who copies another persons copyrighted work into a "revenge spam" -- that is, someone like me complaints about a spammer, and the spammer is angry and blames me for his woes, and sends out another spam that is simply a copy of one of my web pages.
But the real issue here is one of damages. While it is possible to obtain an award of statutory damages under copyright law, it is nearly inconceivable that any spammer would jump through the hoops required to become entitled to statutory damages, and in any event no sane judge would make such an award.
Apart from "statutory damages," it is hard to conceive of any loss or damage to a spammer arising from the copying and redistribution of a spam email. First, the original was widely disseminated without charge, and further distribution would arguably just extend the original goal of wide distribution. Second, as noted, the copying of the entire spam is arguably necessary to "fair reportage" about the spam. (Normally, copying a complete copyrighted work is NOT permitted under "fair use," but there is at least an argument to be made here that without copying the entire spam, the reportage is nearly useless.)
Alas, don't forget that spammers don't just file lawsuits to win -- people like Sanford Wallace have frequently sued opponents just to get publicity, knowing that the suit was frivolous and would quickly be dismissed (but the news media rarely reports on lawsuits that are abandoned). Wallace and other spammers just love to wave the "free speech" banner, no matter how many times judges reject those absurd claims.
The organizers of the archive certainly should look to the legal analysis that exists for web indexing and archiving by companies like Google. It certainly would be practical to implement comparable procedures to allow spam emails to include a "no-archive" tag or to submit requests for removal and blocking of certain materials for which they claim rights. I doubt that even 0.001% of spammers would ever pursue these options. But let's be fair: any archive system will inevitably include at least one email "by mistake," so there needs to be a legitimate "removal" procedure. You know that spammers will deliberately seek out ways to send non-spam to the archive, in order to damage the reputation and diminish the reliability of the system -- just as they forge my email address in spams, and take other steps to "punish" truthful reporting about spam and spammers.
Nobody should undertake a project like this without hiring a lawyer for detailed advice on a wide range of issues, including copyright and other intellectual property issues, corporate structure, liability issues, etc.
-- http://www.MarkWelch.com/ Pleasanton California
I'm perfectly willing to give the Spam Archive the rights to all of the physical copies of spam which have been sent to my e-mail account.
Since these copies have been given to me by the copyright owner and are therefore legal, then it should be fine for me to give them to the Archive, the same way that people can donate books to a library, right?
> Third, IF you receive a certified letter from someone that you can verify is really a lawyer.
Think back to your law school days. In the US, anyone can act as their own lawyer - our courts have repeated rejected the "gatekeeper" role for lawyers that other countries have adopted.
Only a fool would pursue a non-trivial matter without a competent lawyer helping them, if not actually representing them (which is all that membership in the bar really gives you - the right to represent others before any court in that bar), but they still have that right.
Meanwhile, I agree 100% that any "legal" notice that isn't signed with a real name is meaningless. Nobody has the right to make demands by fiat - even if you're willing to concede that somebody is entitled to make a claim (which is far from certain in this case), you have the right if not the obligation to ensure that this person is competent to make this claim.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
I don't know the details of US copyright law, but I can say that in Germany most spam is not copyrighted. Anything to be copyrighted needs to be "persönliche geistige Schöpfung" (an english translation would be something like "personal intellectual creation"). That requires that it cannot be produced by everyone, but needs at least a certain amount of skills that an average person doesn't have. So some spam may be copyrighted in Germany, but the fifth hundred "get-rich-quick"-mail is certainly not.
This is what any prospective spammer gets when he hits my SMTP service.
If they don't like these terms, they can just disconnect and bother somebody else.
220-xxxxxxx.xxxxxxx.xxx ESMTP
220-
220-This system is located in the United Kingdom and access is governed by
220-the Computer Misuse Act 1990.
220-
220-All users connecting to this service must comply with the Acceptable Use
220-Policy found at http://xxxxxxx.xxxxxxx.xxx/pages/aup.php. Hostile attacks
220-against this system will be reported to your ISP and the relevant legal
220-authorities.
220-
220-Anybody wishing to send UBE/UCE to a mailbox on this server does so with
220-the understanding that I reserve the right to claim £50 (or the monetary
220-equivalent in native currency) per message from the sender.
220-
220-By sending mail through this server, you waive all confidentiality claims
220 in the message and grant reproduction rights to the recipient.
"Be vewy vewy quiet, I'm hunting wuntime ewwors!" - Elmer Fudd
I'm going to ignore all the 10,000 stupid posts on this and get to the point: they do have copyright, and the archive is fair use. Archiving the spams is specifically for purpose of information and criticism. IANALAIDFC. The purpose of fair use exemptions is to prevent copyright from becoming a cudgel to stifle public dialog about the contents of the copyrighted work. This absurd copyright claim (yes, it is absurd, because they rip off each other's work all the time and never bother to assert coprights agains this) is merely an attempt to stifle public dialog, civic activity, and the education of the public. Hence, spammers bringing this claim should be kicked swiftly in the ass and sent on their slimy little ways.
Expanding a vast wasteland since 1996.
"Thank you for taking responsibility of this abuse. If you ever come under Norwegian jurisdiction, you will face heavy fines and up to six years in prison."
Employee of Inrupt, Project Release Manager and Community Manager for Solid
Instead, do this:
I'm going to assume that you are in control of your domain and you know how to work with your email system. Create an alias that says:
any-email-sent-to-this-address-becomes-property-of -the-recipient@yourdomain.com
Laws are for people with no friends.
Seriously. I'm sending an e-mail now to this spammers "lawyer". For those of you who don't want to check the article, the e-mail address is Legalservicesdp@aol.com Now I'm not suggesting we spam him, I'm just going to take 2 minutes to send him a nice e-mail suggesting that his work is not appreciated. (If a few thousand other people do the same, that's nothing to do with me). ;)
.
Leonard Crabs is *the* man to call. He has gotten me out of all kinds of jams. Here's a few legal situations he got some friends out of. He doesn't take crap from anyone and is quite well versed in these matters. Oh, and use popfile for your spam filtering needs! :p
Large print giveth, and the small print taketh away
Given also the fact that e-mail is not a secure medium (Any yahoo from here to the sender can view it on the way), I can't see how they can prevent you from redistributing the message.
It would be like AOL breaking into my house and beating the crap out of me because I glue their discs to my wall when I get them. (It's fun and retro, try it!)
By the way, I'm talking about unsolicited e-mail here. Obviously, if you requested spam from somewhere, they can probably form some sort of agreement that forbids you from reproducing the spam. However, if the mail is unsolicited, you aren't requesting a service or product (in this case, spam), they're *giving* it to you, free of charge.
In that case, attempting to say, "You can't place this on your website." is akin to saying, "You can't delete this, ever."
Copyright law was not created in order to give spammers incentive to spam without consequences.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Would all of this apply for person to person emails as well?
For example: someone makes public (via the web or in print) a personal email I sent to them. Could I then sue them for copyright infringment?
So far I don't think the spammers can't claim much in damages.
;)
Since we receive many messages everyday and not every sender would claim copyright on all of their messages and it is hard to tell the difference between copyrighted messages and noncopyrighted messages, so how about this:
In order to handle the relevant messages correctly, perhaps senders should mark all their copyrighted messages with the an appropriate message header such as:
X-Copyrighted: 1
Or even in the message body in a standard unambiguous way. Must be standard and unambiguous to prevent confusion with other noncopyrighted messages.
I'm sure most of us here will then take appropriate action to ensure that their copyright is not infringed and the message _never_ever_gets_copied_ even by mistake.
...however since spam was published as an evidence of harassment, fraud and/or unauthorized use of your resources, copyright can not be enforced without admitting those acts in court. Contrary to the popular belief, there is no Gestapo -- the only person that by law is allowed to decide that you are guilty, is a judge, and everyone that can threaten you with a law can do that because they expect him to be on their side if things will actually go to court. Spammer to do so must admit that he committed act that you accuse him in the first place -- and he will have to do so in court.
Contrary to the popular belief, there indeed is no God.
OTOH, you've brought the combination of clueless, obnoxious and loudmouthed to all new heights!
there's probably a submarine patent for that very thing crawling its way through the sewers of the US Patent Office even as we type :-(
P.
Paul "Say no to feeping creaturism"
If someone trespasses on my property and posts a poster on my wall without permission, I don't then he has abandoned any claim to ownership.
If this doesn't belong in the Stupid News folder, I don't know what does! This reveals a(nother) fundamental flaw in copyright laws if a SPAMmer can send millions of unsolicated e-mails (including porn and scams) but can prevent a website from posting the SPAMmage on a non-profit website. Sounds like free advertising to me. If the SPAM's product was legit, free advertising would be a corporate wet-dream. But this just proves that SPAMmers don't want their illegimate crap revealed to the masses without their deceptive control of its distribution. What crap! How does this affect this other SPAM archive post: http://slashdot.org/article.pl?sid=02/11/29/141820 2
Yes there is probably copyright -- but almost certainly becuase of the purpose for which you published it "fair use" applies. What this means is that since you copied the spam to make reasonable public comment upon it, comment that is within your first amendment rights, the copyright owner cannot sustain a case of infringement. Tell my (oh god I'm so embarrassed) legal colleague to piss off with the fair use word.
(Intellectual Property Lawyer)