Any Lawyers out there? "Fair Use" and Reposting

[drbill]

I just experienced an interesting two days. While doing a Google search for information on an invasive alga, I discovered that a diver had re-posted one of my private e-mails to another party AND some of my posts to a subscription-based diving news list on a board I am not a member of.

I didn't disagree with her follow-up comments on what she re-posted. In fact, I'd say we were much more in agreement on the issue being discussed. What I objected to was the re-posting of my material.

I sent her what I thought was a cordial e-mail suggesting she did not have the right to re-post my material on that site. She responded in a somewhat hostile fashion stating that based on "fair use" she had every right to do that.

I replied that "fair use" did not apply to personal correspondence that was not "published" on a "public" board, and that with respect to re-posting my posts from a subscriber-based board she might have some leg to stand on. However, "fair use" limits the amount of material from another source that may be quoted... it does not allow reposting the entire post or even substantial portions of it without permission. At least that is my understanding.

Her response to me was very hostile, smacked of ageism and told me to Eff myself (using a similar phrase that I will not quote).

I sent copies of her e-mails (along with mine for context) to the owner of the subscription news list since the re-posts came from that site.

Last night I received an e-mail from "her" lawyer suggesting that she was within her rights. I replied to him in a cordial fashion outlining my points and stating that I believed case law would support my contention. His reply was cordial and respectful, and I have no issue with his communication at all.

Without identifying the individual involved, I posted about this general concept on the subscriber-based board. Several responses from members suggested that in the electronic age I have no "expectation of privacy." I find that difficult to accept if true. My writings are "published" on sites of my choosing (including my own website) and I see no reason why they should not be protected just as they would if published in written form. The fact that electronic media make it far easier to copy material verbatim does not IMHO convey any right to do so.

These exchanges have triggered an interest in the issue of "fair use" and how it applies to original material transmitted electronically. I would be interested in the opinions of others, especially lawyers with a background in intellectual property.

I do commend the lawyer for acting in a professional and responsible manner.

 

[DandyDon]

I think you are right. You can object, and if you do not receive cooperation, then you can sue. The bad news you have to sue.

 

[drbill]

I've never sued anyone in my life and certainly don't intend to in this situation. I'm just trying to get a good legal opinion.

However, I think it is an issue more should worry about since we are all members of this and most of us of other Internet boards.

 

[bleeb]

I've never sued anyone in my life and certainly don't intend to in this situation. I'm just trying to get a good legal opinion.

You could just send the web site a DMCA Takedown Notice, with a copy to their ISP. I think you can do this yourself and most legitimate organizations will pay attention.

 

[2 Big 2 Fail]

Not a lawyer myself, those that I am surrounded by all day are the criminal variety. But this sort of thing gets thrashed out among writers all the time, and I've been involved in a lot of that over the years. From what I've seen, first, you dodo own copyright and did from the moment you wrote it. But "fair use" is tested on several points, and my feeling is that her use of your posts are either fair use or are not fair use but are not a violation of copyright. I say this because there would seem to be no reasonable expectation of material value to you, and I'm guessing she used it in the nature of commentary. Nor did she use it to obtain material gain. I doubt that the arms length slight benefit to the subscription site is enough. You have to step back to the reason for copyright law, which is essentially to encourage creativity by preserving it value to allow the creator to benefit and therefore continue to create.

"Expectation of privacy" has nothing to do with the question. In fact, if we assume the well-tested issue of privacy in criminal law transfers to civil, it's true that no one has any reason to expect someone else will keep their communications private. But that's nothing to do with copyright. I really don't think the Internet will make any fundamental changes in copyright.

Courts are very careful about opening giant cans of worms. They think ahead to what an opinion might do in the greater world. For instance. It's most unlikely that anyone will successfully claim a copyright violation for someone echoing a board post or email that one would have to be somewhat demented to imagine having real value. It's not crazy to assign value to substantial blog essays or a story posted to a writers' board for critique. I would be goofy to think this post has material value. It has insufficient creative value for the government to help me defend its use. Imagine the size of the worm can if it was held that casual postings were protected.

I sometimes use this analogy. Posting to a board is rather like writing on a restroom wall. I don't figure to get anywhere asking the court to defend my exclusive use of my toilet stall limerick, however well formed.

And a DMCA notice won't really work. The other poster will likely file a counternotice to the effect that it's no copyright violation, and that pretty much gets the board off the hook. DMCA works both ways.

 

[drbill]

Thanks 2 Big 2 Fail. "Fair use" only allows a reasonable portion of someone's writing to be quoted, not entire sections of it as I understand "fair use." For a post that might be two paragraphs long, I don't think fair use would apply if someone quoted an entire paragraph. Quoting a paragraph, or even a few, out of a 300 page book is an entirely different story.

True, I expect no material loss or gain from this particular incident. However, when someone re-posts my newspaper columns without permission I can argue that.

Appreciate your thoughts on this, especially the "expectation of privacy" part.

 

[2 Big 2 Fail]

I think that's part of what courts are struggling with in applying copyright to the Internet. So much is very short, often shorter than most newspaper columns. Just for thought - is someone's individual posts on a group like this one a "work," or is the "work" really some collection of posts. So maybe when I quote an entire post for commentary, it's part of the larger set of that author's posts. Or, another way to look at it, a thread could be seen as a larger collaborative work by everyone who posted to it.

I should have said expectation of privacy has limited meaning. Something being unpublished does work against fair use. But one of the four factors that must be analyzed to decide fair use is the effect of the proposed fair use on the market value of the work. That's reasonable, given that the reason for copyright is to maintain the commercial value of creation. In other words, there's a kind of harm analysis, and if the nature of the use does no harm, or if the work has no reasonable value to begin with and therefore can't be harmed, the use is more likely to be fair use. We have to remember that copyright law serves a specific commercial function, and it's not at all a matter of just "doing right" or respecting someone's desires. For most casual Internet postings, the analysis begins and ends with the analysis of the writing's commercial value.

 

[Tao of the Dive]

Have you questioned the other party who received your e-mails, and what was their take on things, and their reason for releasing the e-mails? And why would they release them to such a low brow individual who doesn't understand common courtesy or decency?

 

[drbill]

I just let the actual incident slip away into oblivion... was just interested in finding out more about the legality.

 

[Rhone Man]

"Fair use" refers to the right to refer to copyrighted work when commenting on or criticising it (ie. the right of the NY Times literary editor to quote a section of a book when printing their review).

Bit of a stretch to suggest that includes private e-mails, although I could see it might conceivably extend to postings on a private forum. However, fair use almost always requires the work to be attributed to its original creator rather than anonymously copied (laws vary between jurisdictions).

The reference to "expectation of privacy" is an odd one, and might be some weird US law thing I am not familiar with. But it looks like that focuses on a different area of law (breach of confidentiality) rather than anything to do with fair use.

Hope that helps.

Personally I'd let it slide. Whilst I appreciate that for those involved with the algae scientific community, this might be nothing short of an outrage, the only people who will be happy if you pick a fight will be the lawyers.