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(May 1999)
 

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Subject: copyright law vs. mailing list archives
From: Jeff Wasilko <jeffw @ smoe . org>
Date: Mon, 10 May 1999 19:43:12 -0400
To: List-Managers @ GreatCircle . COM
Mail-followup-to: List-Managers @ GreatCircle . COM

I'm the maintainer of a non-commercial site that provides free 
mailing lists for people that are interested in music 
( http://www.smoe.org/lists/ ).

As a normal part of maintaining the mailing lists, we also keep
archives of the mailing lists, and we make them available on the
web. The archives are not edited, nor are they inspected by a
human as they are produced.

I received the mail below today, and upon inspecting the mailing
lists archives, I've found 6 copies of the poem in various list
archives. 

Do mailing list archives have any protection against being held
liable for copyright infringement?

-jeff

----- Forwarded message from "Samuel D. Osowski" <sdo @
 laturnograves .
 com> -----

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Date: Mon, 10 May 1999 13:11:31 -0700
To: webmaster @
 smoe .
 org
From: "Samuel D. Osowski" <sdo @
 laturnograves .
 com>
Subject: Copyright infringement
Mime-Version: 1.0

LATURNO AND GRAVES
A LAW PARTNERSHIP
PRUDENTIAL SECURITIES BUILDING
9255 Towne Centre Drive, Suite 520
SAN DIEGO, CA. 92121
(619) 455-9496
FAX (619) 455-0672
www.laturnograves.com



Dear Madame/Sir: 

You have copied, displayed and disseminated a poem on your home page without a
license from its owner and without attribution to him. We are sending you this
correspondence to advise you that you are obligated to compensate the owner
for
your infringement of his copyright and to explain to you what to do in
order to
be released from this obligation. 

Adam Fendelman is the author and copyright owner of the poem entitled "What
Life is All About."  He published the first version of this poem in 1996 and
has subsequently published several other versions. You may view some of
them on
his home page at http://www.missouri.edu/~c715327/life.htm. A copy of the
official United States Copyright Office registration of Mr. Fendelman's
original poem is also posted on his home page.
The poem on your home page is identical to or is a derivative of one of Mr.
Fendelman's poems. Mr. Fendelman has retained this firm to represent his
interests in this matter.

As the author and owner of the copyright on these poems, Mr. Fendelman has the
exclusive rights to duplicate, disseminate, prepare derivatives of, and to
display them. These rights are set forth in Section 106 of Title 17 of the
United States Code. Your use of an identical or substantially similar poem on
your home page is an infringement of these rights. As a consequence, you are
obligated by law to compensate Mr. Fendelman under the provisions of Section
504 of Title 17 of the United States Code. 

We understand that you may consider your use of this poem to be innocent.
Section 504 of the copyright law provides that lack of willfulness or absence
of belief that your use constitutes infringement does not relieve you of your
liability. 

The amount of your liability for your infringement is set forth in Section 504
of the copyright law. It specifies that the statutory damages for which an
individual infringer is liable are not less than $500 or more than $20,000. 
However, these damages may be increased to $100,000 for willful infringement.
Further, the minimum amount to which the law may reduce these damages is
$200.00 if the infringer can establish he was not aware and had no reason to
believe that his or her acts constituted an infringement of copyright.

You may obtain a release of your liability for your non-commercial
infringement
of Mr. Fendelman's rights by following these instructions:
1.      Immediately remove the poem from your home page.
2.      Within thirty days of the date of this email, remit to the mailing
address shown above the amount of two hundred dollars ($200) payable to
Laturno
and Graves.
3.      Write the URL for your home page legibly on your remittance. 

Your timely payment and removal of the poem from your home page in accordance
with these instructions will protect you from our commencing further
proceedings against you for non-commercial uses of the subject poem on your
home page prior to and including the date of this correspondence. Please note,
however, that nothing in this letter shall serve to release or reduce any
liability of any of the following entities in pending Civil Action # CV
99-01694  DDP (RCX): CHICKEN SOUP FOR THE SOUL ENTERPRISES, Inc., Jack
Canfield, Mark Victor Hanson, Kimberly Kirberger, Health Communications, Inc.
Please call me at the telephone # shown above or email me @
sdo @
 laturnograves .
 com if you desire to continue using Mr. Fendelman's poem on
your home page, if you have used the poem for commercial purposes, if you wish
to use it for purposes other than on your home page, or if you have any
questions about this matter. Should you fail or refuse to remit the above
payment, or should you continue to use Mr. Fendelman's poem on your home page
without his permission, your liability will increase substantially and will
also subject you to liability for payment of Mr. Fendelman's attorneys fees to
recover the amounts you owe him. 

A copy of the copyright laws referred to above is provided in Attachment A at
the end of this letter or you may view the entire text of Title 17 of the
United States Code at http://www4.law.cornell.edu/uscode/17.

Samuel D. Osowski
Attorney at Law  




ATTACHMENT A

Sec. 106. Exclusive rights in copyrighted works 

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; 

     (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; and 

     (6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission. 

Sec. 504. Remedies for infringement: Damages and profits 

     (a) In General. - Except as otherwise provided by this title, an
infringer
of copyright is liable for either - 
          (1) the copyright owner's actual damages and any additional  profits
of the infringer, as provided by subsection (b); or 
          (2) statutory damages, as provided by subsection (c). 

     (b) Actual Damages and Profits. - The copyright owner is entitled to
recover the actual damages suffered by him or her as a result of the
infringement, and any profits of the infringer that are attributable to the
infringement and are not taken into account in computing the actual
damages. In
establishing the infringer's profits, the copyright owner is required to
present proof only of the infringer's gross revenue, and the infringer is
required to prove his or her deductible expenses and the elements of profit
attributable to factors other than the copyrighted work. 
     (c) Statutory Damages. - 
          (1) Except as provided by clause (2) of this subsection, the
copyright owner may elect, at any time before final judgment is  rendered, to
recover, instead of actual damages and profits, an  award of statutory damages
for all infringements involved in the action, with respect to any one work,
for
which any one infringer is liable individually, or for which any two or more
infringers are liable jointly and severally, in a sum of not less than $500 or
more than $20,000 as the court considers just. For the purposes of this
subsection, all the parts of a compilation or derivative work constitute one
work. 
         (2) In a case where the copyright owner sustains the burden of
proving, and the court finds, that infringement was committed willfully, the
court in its discretion may increase the award of statutory damages to a
sum of
not more than $100,000. In a case where the infringer sustains the burden of
proving, and the court finds, that such infringer was not aware and had no
reason to  believe that his or her acts constituted an infringement of 
copyright, the court in its discretion may reduce the award of statutory
damages to a sum of not less than $200. The court shall remit statutory
damages
in any case where an infringer believed and had reasonable grounds for
believing that his or her use of the copyrighted work was a fair use under
section 107, if the infringer was: (i) an employee or agent of a nonprofit
educational institution, library, or archives acting within the scope of
his or
her employment who, or such institution, library, or archives itself, which
infringed by reproducing the work in copies or phonorecords; or (ii) a public
broadcasting entity which or a person who, as a regular part of the nonprofit
activities of a public broadcasting entity (as defined in  subsection (g) of
section 118) infringed by performing a published nondramatic literary work or
by reproducing a transmission program embodying a performance of such a work.




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