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?"
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
Your first assertion is based on the old rule; copyright now attaches as soon as "original works of authorship fixed in a tangible medium of expression."
reference (I can't vounch for this source's complete accuracy, but I'm sure it has this basic point right)
For the interested, the law has gradually moved away from many of the ritualistic requirements in the past, such as attaching a copyright notice. But such notice is good form, as is registration, to protect your rights as author
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
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.
Those copies are what Title 17 refers to as "ephemeral recordings." It's analogous to a TV station's making a temporary recording of a network feed and then broadcasting it later. Copyright law (specifically, 17 U.S.C. 112) grants a blanket exception (with exceptions of its own, of course) for ephemeral recordings.
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.
Fortunately, copyright law doesn't agree with you. A work doesn't have to be communicated privately for it to be protected. The TV shows you watch at night are protected by copyright, even though they're broadcast indiscriminately to millions of households. This is the same idea. The work is distributed widely, but the copyright on it remains intact.
I write in my journal
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
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).
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 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.