At 01:37 PM 2002-08-19 -0700, Chuq Von Rospach wrote:
>A second argument is because public archiving is generally acceptable
>(just look around) without any real controversy, that an assumption that
>it's okay unless you say otherwise is a reasonable one. (whether that
>should be the default, acceptable assumption or not is irrelevant. On the
>net, it is)
Um, here I have to disagree. I do not think that public archiving is
OK. Lots of lists that I know of and so forth take the position that
public archiving is not OK. The fact that many public archives exist and
many allow it does not make it OK for everyone.
>A third argument is that none of this has been run through court or
>cleared up via legislation and the precedents simply don't exist, so
>assuming anything is a basis for disaster if you assume wrong.
Come on. There is property, and there is theft. In this case, you sound
something like someone who says, "We have established that stealing right
handed frammitzs is a crime, but this is a left handed one." The cases on
the web about deep linking and framing are more about, "If I take a picture
of your car, do I have to compensate you," not "If I take your car do I
have to compensate you".
> That's especially true if you base your assumptions on carefully chosen
> answers in a copyright FAQ that may or may not be useful in context to
> the larger, complex issue.
>
>I'm not a copyright lawyer by any means, but I've had to deal with them
>and have dealt with these issues going back to the 80's here online. it's
>a massive tar-baby, and it won't get any better any time soon.
>
>Here's MY strategy on how I manage this stuff. you can assume from this
>that it's how I view reality based on my research (but note for the record
>I'm not recommending you do it this way. I'm saying this is how I do
>things, or in some cases, how I probably should do things but don't).
>
>First, there's a defacto-default that it's okay to archive unless you say
>no. Just look at how gmane set things up. Or google. or name your favorite
>to think otherwise is to head down the logic of people like the
>anti-deep-linkers.
Sorry, the scum at gmane are thieves. Call them thieves and stand up for
what is right, don't excuse their scumbag behavior because someone
(apparently this comes down to an individual) who was not moral enough to
do the right thing decided that it was simpler to steal than to ask. Yes,
they are stealing lists and archiving them. Because they did it does not
make it right, nor will the next person do it, perhaps, if there is an
outcry. But as long as people excuse the theft as "possible therefore
moral" then the next person who is making this same decision will come to
the same conclusion. Easier to steal than ask.
>If I put a box of candy on the front porch, it's stupid to think people
>will knock and ask if they can have a piece first. If you want them to ask
>first, put up a sign, or keep the box with you in the house and make them
>knock to ask for it.
Um, crapola. If I park my car on the street, someone might take it, they
are a thief. So is the person who comes into my yard and picks a bushel of
fruit off my tree without asking. The fact that it can be done does not
make me a fool for growing a tree or parking my car on the street. I get
packages dropped on my doorstep by UPS every week. Every one of them is
more valuable than candy. Not one in many years has been stolen. I've
only had mail stolen once in 30 years and that was by a child who had no
morals. And it is certainly possible to steal mail --- it sits in one's
mailbox, and everyplace I've lived, there are no locks on one's mailbox.
But the point is that, small or large, taking someone else's property is
theft. Even if it turns out that you can.
>Undoubtably, the original author owns the copyright on the message he
>sends to a list. What happens after that gets very muddy, very fast. By
>sending it to the list, unless the list has a known, regulated, restricted
>population, he's made an overt act of distributing that message to an
>uncontrolled audience.
Crapola. Maybe you have confused mailing lists with Usenet. I hope no one
else has. I personally believe that the audience of mailing lists is
controlled, and that the user loses no more rights to their work than they
would if they, for example, sent the work to a APA that did the copying for
you and maintained a variable copy count. The people who get the copy of
the APA can keep it or dispose of it. The collator can make copied to
satisfy the copy count. If someone who gets a copy decides to make more
copies and redistribute, unless the APA rules say they can. then, strictly,
they are not allowed to. Can they spontaneously copy an article and send
it to someone else? Possibly fair use. Can they make hundreds of copies
and sell them? Strictly, no.
What is the difference between an APA and a mailing list? Well, in an APA,
we know that there are physical pieces of paper. With a mailing list, we
do not know about specific pieces of paper, there are electrons. But there
is still the concept of a copy, and there is still a point where the action
changes from "disposing of one's copy" to "duplication", and whereas that
line may be more or less overt, when one talks about a large scale archive,
that is clearly over the line.
>That strongly limits his ability to later say "you can't have this", since
>he made no attempt to control access to it at time of publication/distribution.
Sure they have - they sent it to a mailing list, not to Usenet. The mailing
list has a known distribution. And in my case, a policy about known
archive points under a central control.
>As the list owner, the rights are somewhat tenuous. You don't own that
>message, the author does. You can claim compilation-copyright on the
>collection of messages as a group (similar to an anthology of stories
>published together), and that goes back to Brad Templeton and
>rec.humor.funny many years ago. But at the same time, I know lawyers who
>feel that'll have limited power if it ever goes to court. Some would love
>to try that case, some get hives at the thought. (in fact, I've had that
>discussion within the last six months over a, well, situation that shall
>remain undescribed, and the resolution was that it wasn't worth pursuing
>and it wasn't a high chance of success, and it definitely wasn't worth the
>money or energy).
>
>Given all that, what IS BLOODY IMPORTANT is to make your requirements
>known. I've actually considered adding x-headers to every message with a
>copyright blurb -- but in all honesty, the poster owns that message, not
>me, and that creates an interesting conundrum: can I claim a compilation
>copyright on an individual message? Can I claim a compilation copyright on
>the collection of messages by placing that copyright on someone else's
>material sent individually? damn tar-baby again.
I'm becoming convinced that I may have to overtly assert my compilation
copyright through notice. But only to protect myself against thieves and
immoral people.
>So the real answer is "we dunno. you can quote copyright law all day, and
>there are no precedents to back it up". So anything can happen. If you
>feel not allowing archives and protecting your archives from use without
>approval is important, you better make your wishes very clear and
>explicit. And even then, who knows? Until there's precedents, who knows
>what might be decided.
>
>But if you just leave it there, open and waiting like a case of kit-kat's
>on the front porch, don't complain is someone walks by and grabs the whole
>box. Because the defacto-default is "here. Have fun", and that's not
>changing. The further your preferences are from that, the more you have to
>overtly and actively state and protect those preferences. and whether you
>think that default is appropriate or not is irrelevant. Changing that
>default's an entirely different argument.....
The fact that the children have been shoplifting for years may mean that
for loss control purposes, the storekeeper should watch every kid that
comes into the store like a hawk. It does not mean that the behavior of
the shoplifters is moral, or that it should be justified because "everyone
does it". Nor is theft the defacto default that a moral person will work to.
If it in necessary to write an RFC, it should explicitly say, "By the way,
it is not acceptable for you to grab messages and archive them unless you
get permission."
Change the "theft is acceptable" morality. Put it in writing.
--
"Forgive him, for he believes that the customs of his tribe are the laws of
nature!"
-- George Bernard Shaw (1856-1950)
Nick Simicich - njs@scifi.squawk.com
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