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Re: Usenet and Intellectual Property


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Posted by M. Arthur Auslander on September 28, 2000 at 03:43:22:

In Reply to: Usenet and Intellectual Property posted by Carol James on September 27, 2000 at 23:20:13:

: Hi,

: To make a very long story short, recently it came to my attention that Usenet isn't covered under copyright law similar to that which governs websites. To clarify that, I mean that no precedent has been set (as far as I know) that lets people know that Usenet posts have the same rights as other literary/artistic works or other kinds of intellectual property. . .
: As a result it seems that a 'legal loophole' of sorts exists where despite the Berne convention, Usenet posts aren't considered protected under the laws that apply to print or web published material.
: That seems rather odd to me, so, I'm wondering..:

: If a case was pressed where one sued a company (Remarq before the recent merger or Deja, or any number of other web-based accesses to Usenet groups) for use of ones literary/artistic work that was posted to Usenet (but not through a web-based service), is it likely that in this current state of having no (to the best of my knowledge) precedent over Usenet copyrights and third-party use of posts, that the law would uphold the individuals rights to their Usenet postings?

: Generally posting to Usenet is considered a form of self-publishing (or at least this is what major publishers believe when it comes to submitting to them work previously posted to Usenet in whole or in part - they will only consider buying re-print rights). If that is the case, then wouldn't Usenet postings have all the protection that print published works have? If that is the case, then websites like Deja that make their money by re-publishing works from Usenet on their site (websites are another from of self-publishing, further when one posts to Usenet they haven't granted distribution to the web) are infringing on copyrights are they not?

: Last I saw (during the recent issue about Deja turning words in the test of posts into links to product pages) Deja believes they can archive/re-publish Usenet postings because they have an 'opt-out' of sorts. If you don't want Deja to use your works you can use an "x-no-archive: yes" header in your post. But, the problem (IMO) with that is that first you need to know that Deja is archiving the posts, and further that the opt-out exists. In the case of a post being intellectual property, isn't having this sort of an opt-out like having someone walk into your home, leave with your TV and then later say something to you to the effect of "you didn't have a note on your door saying I couldn't take the TV"? Deja stated recently (I can cite the article if you'd like) that they believe they have "tacit permission" to archive and use posts where people failed to use the available opt-out.

: Generally, this opt-out is respected by more companies then just Deja, but I've heard that there are companies and University archives that fail to heed the opt-out consistently if at all. This renders it useless and IMO means that there really is no way of opting out of having your posts used in some fashion by a company/organization (in other words, used for more then just the standard 'one copy for personal non-profit use').
: That means that people using Usenet ought to use copyright notices, and have some comment on terms of use. (shrink-wrap licenses I believe they are called). Would such a thing (the copyright notice and terms of use) be enforceable in court?

: I'd love to hear your thoughts on this, esp. if you know of any applicable cases I should look into.

: thanks,
: Carol

Dear Carol,

There is too much to consider and not enough focused fact. What is more I have head of Usenet but an not familiar with it or how it functions and I really can't afford to spend the time to analize your entry.

The creator of an expression is entitled to protect that which is created. There are inherant copyright rights in the creator. Those rights are enforceable upon registration. The non inclusion of copyright notice in a work, allow use by others until there is notice.
I don't recall if there is retroactive liability for infringement before notice and registration.

You are dealing in vauge complexity.

M. Arthur Auslander
Auslander & Thomas-Intellectual Property Law Since 1909
505 Eighth Avenue, New York, NY 10018
212-594-6900, fax 212-244-0028, aus@auslander.com
ELAINE's Workshop (sm)
E arly L egal A dvice I s N ot E xpensive



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