[Ti] eLists & emails generally public (was Re: Powerbook MacIntel...)

[Daniel T Kegan]

On Nov 27, 2005, at 11:15 AM, Chris Olson <chris.olson at astcomm.net>  
wrote, replying to Shawn King <shawn at yourmaclife.com>:
> Note that persons outside the US do not need to register their  
> works in order to bring suit.

Copyright, like most rules and laws, is a bit more complex.
There is the basic rule, and the exceptions, and the exceptions to  
the exceptions, ...

Just a few of the issues: where was the work created, where first  
published,
citizenship of the creator, whether the work was a 'work for hire'  
and thus
owned by employer, when was the work created, whether the work was  
copyrightable, whether the writer is the owner of the writing (not  
always the case with elist posts), etc.

Plus, under USA law, there is the matter of "fair use," 17 USC 107.
Making one's own opinion heard/seen and including the relevant
part of a prior post would generally be seen as fair use.
One more reasons it's good practice to edit replies--easier for
readers, less bandwidth, and increased fair use defense.

For a USA citizen to attempt to enforce a claimed copyright in a  
short email
would in most cases be both difficult and expensive.

Then, beyond copyright, there are the contract law issues.

> I do believe you received an email with a specific copyright
> declaration, stating you do not have permission to publicly
> distribute it, regardless of its commercial value.

One can create a binding contractual agreement to keep some information
private. This is rarely done by sending the message and within that same
message asserting its privacy request. Such often would just be a  
request.
To get some contractual teeth, the offer to convey information should
precede the information, and the information disclosed only after the
recipient agrees to keep the information private.

And there may be some impact from the contract formed by a user using  
a TheMacintoshGuy list.  <http://www.themacintoshguy.com/lists/ 
titanium.html>:

"Some informal rules for this list...Treat your list neighbor as you  
wish to be treated. Address breaches of Netiquette. privately, not on  
the list. Assume the best, not the worst."

Also, "9. Who is on the list? How can I get a copy of the E-mail  
addresses on the list? List member names and addresses will be kept  
strictly confidential and will not be released to anyone."

This has some implications when a list member takes a on-list  
communication off-list. Interestingly complex implications.

And then there is the contract between the posters and their ISP.

Formal agreements between persons are generally modified by their  
behavior (course of dealing) and the general expectations of their  
industry (trade usage). The Internet appears to have generated a wide  
divergence of what elist owners and elist members consider appropriate.

For those seeking a general bottom line--
Within the United States jurisdiction, assume anything you say or  
write is free to circulate unless it or its context is changed to  
make the statement deceptive, harmful, or there is a proper prior  
restriction on its distribution.

Daniel Kegan * daniel at keganlaw.com * Kegan & Kegan, Ltd.
We identify, develop, and protect intangible business assets
and counsel other professionals on legal issues.
Balanced Counsel for Smart Clients * <http://www.keganlaw.com>
  * * * * * * * * * * * * * * * * * * * * * * * * *