"C" RIGHTS IN "E" MAIL

IVAN HOFFMAN, B.A., J.D.


Those quick, little missives we send off, seemingly by the hundreds each day, belong only to us. We are the owners of the copyright in our email.

Under the Copyright Law of the United States, the creator of any writing is the author and copyright proprietor of his or her creation, absent a valid agreement to the contrary. Under that law,

A work is ''created'' when it is fixed in a copy or phonorecord for the first time;.
And,
A work is ''fixed'' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
Thus, the moment the writer creates the email a copyright begins. And the United States statute provides the following rights to literary works, which includes e-mail:
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
Therefor, making a copy of the email and reposting it probably constitutes a potential infringement of the copyright belonging to the author.

It is no longer required that there be affixed to the writing any copyright notice at all. And the fact that the email is "published" to another person, to a group of people, on a listserve, news group or otherwise does not make the email available for reposting, copying, or other use--not without the express and written consent of the writer.

The Copyright Law provides this definition of "publication:"

''Publication'' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
Therefor, one could even argue that although the email has been posted, it has not been published in the copyright sense of the word since there has only been a "display" of the work. But even assuming that publication has taken place, no rights are necessarily lost to the copyright owner.

Thus, it is wise, indeed mandatory, to seek permission from the author of the email before you click on the "forward" or "redirect" or other button on your email program.

It does not, however, spell the death of the Net because copyright resides in the creator of a piece of email. It does, however, mean that legal doctrine may have to be expanded to keep the law electronically current. And while I cannot supply "answers" to all the questions because the area is quite new, let me speculate by asking you to consider just these issues as examples:

  1. When we post, we probably impliedly consent and it is likely "fair use" to have our posting used in reply to us. Someone probably has our consent to use portions or even the entirety of our posting in order that they may reply to us. But when we post "privately" do we impliedly consent to have our posting put up on a list or news group? In other words, if we send an email to a person for their private reading, do we agree without expressly agreeing that the recipient may then take our private posting and broadcast it to a larger audience?
  2. It would appear that the answer to 1. is "maybe not." The doctrine of implied consent should probably be used only when the sender should likely and reasonably have foreseen that his or her posting would be reposted in this manner. Should we consider whether or not the larger posting went to a group with the same or at least similar interests as that of the sender and recipient? What if both were members of a news group or a list? What if they were not?
  3. Assuming that a reposting in some fashion is impermissible, exactly what are the actual rights that have been infringed upon? Certainly one could argue that it was an infringement of the copyright in the original posting. Is it, however, also an invasion of the sender's privacy? But is the sender in the public eye thereby making the standard of proof greater in order to prove the claim? What if the posting were made available originally to the group or list as a whole? Does this make the poster a public person for the purposes of invasion of privacy? And can the posting be used in order that it be commented upon as in the statutory exceptions called "fair use" for purposes of commentary? And can the posting be "flamed" and claim exemption as parody? And how much of the posting is permissible under this doctrine of "fair use" even if it is not for commentary or parody?
  4. And what of the "innocent infringer" or "invader" of our privacy who accidentally clicks the "send" button before changing the "send to" address? We have all done this. Must there be some exceptions to the "strict liability" rules relative to copyright infringement? The damages currently awarded vary depending upon the state of mind of the infringer. Perhaps the underlying liability should be changed as well.
  5. And what about the contract relationship between a sysop and a member that says that the sysop can edit anything the sysop decides is inappropriate? By doing so, is the sysop infringing on the underlying copyright? Where does the contract law overtake the copyright law? Copyrights can be transferred but if the transfer is of exclusive rights, the transfer must be in writing and signed by the transferor. However, can a sysop claim a non-exclusive transfer of your copyrights in your email because such transfers can be oral?
  6. And what about chat programs that allow the user to save copies of the conversation? Given the sometimes raunchy nature of the chat, this could certainly lead to issues about invasion of privacy as well as multiple copyright infringements. Most laws require that consent be obtained by all participants of a telephone conversation before it can be recorded. Shouldn't these sorts of laws be applicable in a chat program environment?
  7. And if you are able to use someone's posting and then you add to the posting, do you become a "joint author" entitled to copyright protection? The answer would seem not since your contribution to the original posting is able to be segregated and it was not the intention of either party to make the two contributions indistinguishable. But even if you are not a joint author, are you entitled to some measure of protection? Is this a collective work?
It is simply not possible to respond to all the potential copyright issues since this is, to a large extent, frontier territory. Perhaps new theories may have to be developed in order to deal with the many new questions that arise from the new technology.

There are obviously more questions than apparent answers at this point in the state of the email issue. The questions I raise in this article are only some of what may pop up in the coming period. What is important however, is that we have a frame of reference for discussing and resolving these open questions. The current law seems adequate to handle the issues. What we need is the wisdom to apply the law with regard for practicality and in a way that reflects the freedom that email provides to us all.

© 1996 Ivan Hoffman

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This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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