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?"

Comments

They're right

[Trusty Penfold]

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.

Re:Yes but -- much spam is illegal

[Twirlip of the Mists]

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.

Re:Consider setting up a honeypot

[Liquor]

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.

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 :). (I wonder if the disclaimer could mandate a $100,000 item removal fee?)

Damn gatekeepers of justice

[coyote-san]

> 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.