On Sat, 21 Dec 1996, Eric Thomas wrote:
> On Fri, 20 Dec 1996 15:59:47 +7 John Buckman <jbuckman@shelby.com> said:
>
> >The advantages of a copyright in the header are that:
> >* most people's mailers won't display it, so it won't interfere with
> > normal mail.
> >* It asserts your copyright notice, and would probably be worth
> > something in court if you decided to recoup damages.
>
> These two claims are mutually exclusive. A copyright notice isn't worth
> anything if you take steps to ensure that most people are unable to see
> it.
I don't see that they are mutually exclusive at first blush. But then
maybe I'm a little slow on the issues. Unless I am mistaken, the
suggestion is not directed at *trying* to conceal.
It seems to me, through the many listservs I've seen, all manner of legal
interests that might be preserved better via certain kinds of notices and
disclaimers are routinely forgone for practical reasons like a dislike to
seem to technical, too legalistic, and pedantic. It creates a different
mood to attach legal phrases to everything. In addition, such content
fattens archives which shrinks disk space, and the precision of searches
in archives is a little weakened because of the repetitive clutter. Yet,
content has value to people, either economically or otherwise. And these
legal notices are generally a positive step toward preservation.
Buckman's note seems to emphasize that a benefit of inserting an X-Legal
header may work toward two goals in one stroke.... preserving rights a
little better, and also being less intrusive as to the above matters like
mood/perception of the forum, fat archives, etc. I don't think his point
was to "conceal" the copyright notice as a form of stealth.
True, it would be better to have such notice standout in bold print in
terms of general awareness of such notices or other legal matter. But
when the reality is that many people don't bother at all with these
issues because of the above burdens of observing them openly in the body
of all messages, something is lost there too.
A middle of the road approach might help.
I imagine that the legal value of these notices, placed within routing
headers, falls in the class of what we know as "untested law." There is
no good foundation of case law .... yet. Someone needs to cut that grass
at some time. Then we'll know for sure.
So an issue is what do people do in the face of legal uncertainty?
Generally, many good lawyers advise you to provide a notice, a
disclaimer, or other measure in your packaging or what have you in case
it turns out to be of benefit later when the law becomes more settled.
It seems to me that methods of feeling less naked which cover at least
part of your body are better than wearing nothing. The towel may be
small. But maybe it's just enough. :)
There is often a pragmatic value to some measures like this too. When two
people don't know what the law will hold, if you have at least a
plausible ground to stand, it may deter whimsical abuse of your rights,
and whimsical lawsuits. The appearance of a possible good legal right is
often highly valuable.
In the state of California, judicial statistics show that of all lawsuits
filed, which numbers great thousands each year, something around 5
percent go to trial. The rest are settled befor trial or dismissed or
arbitrated, etc. Every step you take that improves your position before
trial is a welcome one when that time comes.
I would be interested to see more options that have both legal merit, and
low profile in terms of being a bother to list members and the atmosphere
of these forums.
James Cook
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