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."
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.
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.
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.
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.
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.
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
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.
Hmm, not sure. This is a tricky one. But if you send out messages, I think it's your responsiblity to find out what the recipient is going to do with them.
/request/ to be added. If the spammer is flooding random addresses with crap, s/he can't complain about what happens to the messages. What happens if one address ends up at a script which automatically posts to a website everything that is sent to it?
No analogy is great for this situation, but say you sent a letter to the address marked for the letters page of your local newspaper. The editor surely has the right to print anything legal that is sent to that address since that is the reason the address exists.
Similarly, if a spammer sends a spam to someone hosting a spam prevention site that would seem to be to be almost a
I'm not sure the analogy with broadcast media holds, because email is not really designed for broadcasting (even if the spammer is attempting to treat it like it is.)
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
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
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.