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 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.
Tell the 'lawyer' that you need definitive proof of the identity of the original author, and that said 'author' must personally claim copyright infrigement.
That's not true. Claims of infringement can be made by the current copyright holder, whether or not that institution or person is the original author of the work. In this case, the spam is declared "Copyright 1997, Email Connection Inc." (It's the first line in the message.) This indicates that the message was written as a work-for-hire, and that the corporation is the owner of the copyright. So any representative of that corporation can claim infringement: an employee, a retained worker like a lawyer, or even a third party who wishes to place the claim on behalf of the corporation.
I write in my journal
Copyright here is being used not to protect profitability but to suppress public discussion.
Ah. You may have just hit the nail right on the head. That's an excellent way of looking at the question. Public comment is critical to developing policy on the question of commercial email, and comment only in the abstract is not useful. Good one.
I'd imagine that a judge would just latch on to the noncommercial and critical aspects of the archive, and stamp the whole thing fair use, rather than trying to break new ground on yet another copyright exemption.
Good argument.
I write in my journal
Um, no, the parent post is correct. The act of sending the letter is the "explicit action" that you mention.
Wrong. Simply sending a letter doesn't count because you aren't doing anything different from or in addition to what you would do without the agreement.
This disclaimer has been around for as long as I can remember,
Your own words trip up your argument here. The fact that institutions like newspapers have had this "letter to the editor" policy simply establishes that letters to institutions are different from letters to individual persons. If I sent a letter to Bob the copyboy at The Times, I'd be mightily pissed if that letter ended up in tomorrow's edition. When sending correspondence to an individual, there's a reasonable expectation that that correspondence won't be subject to any unusual terms or conditions.
It would never work.
I write in my journal
This is not at all a legal argument--
but it seems there should be a distinction drawn between these:
1) Profiting from a work as if it were my own, thus diminishing its value by making it more common and probably undercutting the price of the original.
2) Including a work as part of a criticism of that person's activities. If I was protesting someone's painting of a religious figure, would I have the right to show a photo of that painting?
Donate background CPU time to fight cancer.
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.
While setting up honeypot addresses in itself seems to be a good idea, I suspect that it would be a good idea to be sure that any item to which the address is attached or displayed carries the notice you mention - by sending to that email address the spammer grants publication rights to the Great Spam Archive - so that there can be no accusation that there was no way for them to know about it before they sent the message.
:). (I wonder if the disclaimer could mandate a $100,000 item removal fee?)
For that matter, it might be worthwhile to add a rider to the notice something along the (properly translated to legalese) line of:
"Also, by sending to this address, the sender agrees to pay an archiving fee of $500 per item."
If they claim copyright, then you know who to claim the archiving fee from
Liquor
Sanity is a highly overrated commodity.
The physical letter and its contents become your property, but not necessarily the same of the copyright, trademark, or patent rights embedded in the physical object.
If you receive a copy of the latest John Grisham novel in the mail unsolicited, you get to keep it - but you don't get to set up your own printing press to make copies. You own one copy, not the copyright.
The same logic applies here. In the US, for better or for worse, everything that is "fixed in a tangible medium of expression" is automatically copyrighted. That probably includes spam, despite the fact that this state of affairs doesn't advance the progress of "Science and the useful Arts." (Maybe spam is a useless art?)
The whole concept of mass-distribution copyright is a very strange one. When I post something to Usenet, am I giving implicit permission to Google to archive my post and serve it up years later? What about posting to a forum like Slashdot, which claims that I still own my comment, but nonetheless republishes it without any agreement from me?
> 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
Good point. Part of the difficulty of prosecuting spammers under many of these state anti-spam laws is the difficulty in finding them. So, sure, post the stuff, force them to claim ownership in such a way that it proves that it's their work, then turn around and sue them for breaking your state law.