Chuq Von Rospach <chuqui@plaidworks.com> wrote, in response to a
posting from me:
>>> Why do you believe those are implied by copyright law? I'm curious
>>> what your rationale is.
Here's my line of thinking...
(1) Every single message is copyrighted material, except if it's not
explicitly put in the public domain.
(2) In addition, I believe that the list-owner owns a compilation
copyright on the sequence of messages seen as a whole. (That
is perhaps not entirely clear, so I wouldn't be too surprised if
not all courts of law will agree with this point, or if they might
grant it only for lists which are actively moderated.)
(3) Publishing archives on the internet involves making copies and
distributing them.
(4) I believe that by posting to a mailing list, people are implicitly
giving the list-owner the right to distribute copies of their
messages to all subscribers.
(5) I believe that in situations when it is made clear from the
list-information page that the list-owner has set things up to
create web-based archives, the people who post to the list are
also implicitly giving the list-owner the right to distribute
copies of their messages in this manner. (This argument does not
apply to unauthorized third-party archives.)
(6) It follows from (5) that the list-owner has at least non-exclusive
rights to the entire archives. I think that point (2) about
compilation copyright gives the list-owner even exclusive rights
to publishing the archives in their entirety. If that should not
be the case, then the list-owner can still gain such exclusive
rights by buying from some of the most active contributors the
copyright of their contributions, so that then the list-owner
actually owns the copyright to significant parts of the archives.
(7) Owning the exclusive right to publishing the archives in their
entirety has commercial value, because it is possible to place
advertisements on the archive pages.
(8) This commercial value is drastically reduced when there are
multiple competing web-based archives of the same list. For this
reason, the "fair use" exception of copyright law does not apply
to unauthorized complete archives of the list. (It may still
apply to partial archives, e.g. I think that when someone just
publishes archives of the threads in which he or she was
personally involved may, that could, depending on circumstances,
actually be "fair use".)
BTW this chain of arguments clearly breaks down for lists which have
no official archives; I wouldn't even dare speculate what the legal
situation of unauthorized archives of such lists might be.
> > As always, contact an attorney who speaializes in copyright law for
> > specific advice
>
> Oh, I have. A few times. If only it were this simple. (but since I'm
> not an attorney, I'll leave it at that).
Also IANAL, so if/when someone actually gets a lawyer to check if my
arguments above are correct, I'll appreciate hearing about the
results. :-)
Greetings, Norbert.
--
Founder & Steering Committee member of http://gnu.org/projects/dotgnu/
Norbert Bollow, Weidlistr.18, CH-8624 Gruet (near Zurich, Switzerland)
Tel +41 1 972 20 59 Fax +41 1 972 20 69 http://norbert.ch
List hosting with GNU Mailman on your own domain name http://cisto.com
References:
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