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.
Well, I don't know, MAYBE YOU SHOULD ASK A LAWYER. Sheesh, when will people learn?
--sdem
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
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
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
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