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Subject: Re: copyright law vs. mailing list archives
From: "Bernie Cosell" <bernie @ fantasyfarm . com>
Organization: Fantasy Farm Fibers
Date: Tue, 11 May 1999 09:36:22 -0400
To: List-Managers @ GreatCircle . COM
In-reply-to: <Pine . BSI . 3 . 91 . 990511001855 . 11968B-100000 @ ivan . iecc . com>
References: <19990510194312 . E21433 @ smoe . org>
Reply-to: bernie @ fantasyfarm . com

On 11 May 99, at 0:47, John R Levine wrote:

> > Do mailing list archives have any protection against being held
> > liable for copyright infringement?
> 
> I am not a lawyer, but I rarely let that stop me.
> 
> As you suspect, you're being shaken down, and the situation is nowhere near
> as cut and dried as the letter claims it is.  The copies of the poem could
> fall under the fair use exemption, particularly if people were commenting on
> it, not just sending it in.

I don't think that 'fair use' extends as far as a lot of folk usually 
think it does.  I'd bet that if we saw some of the submitted alleged-
infinging posts they wouldn't really be fair use. [Note that Jeff's forum 
is not a poetry review/commentary list]

> ..  Even if it is infringing, it's not clear whether
> you are the infringer or the people who sent the poem to the mailing list
> are. And realistically, nobody's going to sue you for $200, which is what a
> court would likely award.  I'd delete the messages with the poems from the
> archive, and maybe write back.  I certainly wouldn't pay.

This is always a toss up, but I'd agree [although I'd call a lawyer 
first]: there is no reason ever to answer one of these sorts of things.  
Let the lawyer actually go and file suit, if they wish.  I would, 
however, immediately remove the material from the archives [and also 
notify the folks that sent it to the list that a copyright holder has 
stepped forward to challenge their submission].

> The new Digital Millenium Copyright Act specifically exempts service
> providers for liability for innocent infringement so long as you register
> yourself with the copyright office.  Anyone who runs a web site with content
> provided by others should consider registering.  See
> http://lcweb.loc.gov/copyright/onlinesp/

I don't think this is correct.  OCILLA would exempt the site *running* 
the web-server with the archive, but my reading of it wouldn't provide a 
means of exempting the web-*page*-owner.   If you are putting the 
material on *your* web page, then, to my reading, OCILLA doesn't apply 
and *you* are not going to be exempt..

I wrote a little almost-in-English summary of OCILLA, how it works and 
what it does.  If you're interested email me..

  /Bernie\
-- 
Bernie Cosell                     Fantasy Farm Fibers
mailto:bernie @
 fantasyfarm .
 com     Pearisburg, VA
    -->  Too many people, too few sheep  <--          


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