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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 16:24:35 -0400
To: List-Managers @ GreatCircle . COM
In-reply-to: <Pine . BSI . 3 . 91 . 990511110006 . 27190I-100000 @ ivan . iecc . com>
References: <Pine . GSO . 4 . 05 . 9905102305370 . 10222-100000 @ katie . vnet . net>
Reply-to: bernie @ fantasyfarm . com

On 11 May 99, at 11:12, John R Levine wrote:

> If you maintain a substantial archive, though, my advice to register
> with the copyright office to get the protection of the Digital
> Millenium Copyright Act still stands.  It only costs $20.

John and I end up disagreeing on this one, I think, but since neither of 
us are lawyers, you pays your money and you takes your choice.  OCILLA 
refers throughout to "service provider" and includes verbiage like:

(c) INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT DIRECTION OF USERS-

    (1) IN GENERAL- A service provider shall not be liable for monetary
    relief, or, except as provided in subsection  [...]

which to my reading seemed to be intended to mean 'ISPs'.  I don't think 
that the folks sending messages to a mailing list would be considered 
"users" in the context of the material appearing in the archives, and so, 
alas, to my reading the archive-administrator would _not_ have the 
recourse to gain immunity under OCILLA [but the folks running the system 
*used* by the archive-administrator would be].

On the other hand, it hasn't been adjudicated yet and so it might work: 
the analogues are certainly there [where it says things like:

    `(3) upon notification of claimed infringement as described in
    subsection (c)(3), responds expeditiously to remove, or disable
    access to, the material that is claimed to be infringing or to be
    the subject of infringing activity, ...

there's a clear analog to "removing the material from the archive" and 
where OCILLA talks about "user" [for notification and counter-claims and 
such] you could read "the person that sent the material to the mailing 
list originally"...  And so it is _possible_ that OCILLA might be 
extendable to "secondary service providers" or some such terminology, but 
it is not as clear-cut as the protections affords the ISP/sysop.

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


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