Tuesday, December 08, 2009

Question for readers on publishing email

So sometimes, as you know, we get email. Sometimes we publish the email. PZ Myers has been doing it for years. And before I was a blogger, I used to publish every piece of email that I got from my web page response to Amway. (I no longer do this, but I've set up a guest book to let people self-publish their feedback.)

Because I am such a polite heathen, I usually ask people's permission before posting the text of an exchange on a blog, and I will generally honor someone's request to have their stuff taken down. However, I have until recently considered it fair game to post whatever I receive at my discretion, and only a matter of etiquette to do what they want.

But recently I had a reason to go and look up the law, and I was surprised by what I found. It turns out that legally, the writer of any message has an implied copyright on everything they produce. While the copyrights are rarely enforced, intellectual property experts generally agree that it is a significant ethical violation to post somebody else's material without permission, even if you are just responding to it. You can paraphrase it, you can include perhaps short excerpts, but you should not simply repost it verbatim.

I'm not a lawyer so I don't know all the details all that well. What do you think, dear readers? Are we committing copyright fraud every time we post one of those amusing "we get email" messages, when we have not obtained explicit permission in advance?

I don't think we'd ever be taken to court for it -- after all, just look how much Something Awful routinely gets away with for comedy purposes. However, as an ethical humanist with morality based on real world consequences, I'd like to reason this out and avoid validating claims that atheists are immoral sinners.


  1. Copyright is one of the most stupid who-cares-about-it law ever! just the fact that we have to commit a crime to get Heroes Volume 5 over here before the super-slow BBC is a joke in itself.

  2. Kazim,

    Caveat (emptor): I, like you, am not a lawyer.

    It seems to me that on a not-for-profit blog that the fair use doctrine would apply. And I found a post by the same Thomas G. Field you link to in your post here: http://www.piercelaw.edu/thomasfield/ipbasics/copyright-on-the-internet.php

    I found the following excerpts interesting: "Basic limits to copyright.
    Although email messages and web pages may enjoy copyright protection, rights are subject to several fundamental limits. For example, only expression is protected, not facts or ideas. Also, later works that merely happen to be very similar (or even identical) to earlier works do not infringe if they were, in fact, independently created. Sources of general information on those topics are listed below.
    Fair use.
    Fair use is one of the most important, and least clear cut, limits to copyright. It permits some use of others' works even without approval. But when? Words like "fair" or "reasonable" cannot be precisely defined, but here are a few benchmarks.

    Uses that advance public interests such as criticism, education or scholarship are favored -- particularly if little of another's work is copied. Uses that generate income or interfere with a copyright owner's income are not. Fairness also means crediting original artists or authors. (A teacher who copied, without credit, much of another's course materials was found to infringe.)

    Commercial uses of another's work are also disfavored. For example, anyone who uses, without explicit permission, others' work to suggest that they endorse some commercial product is asking for trouble! Yet, not all commercial uses are forbidden. Most magazines and newspapers are operated for profit; that they are not automatically precluded from fair use has been made clear by the U.S. Supreme Court.

    ...and this: "Email
    Notice on individual email messages (if blanket notice is not provided, say, in a welcome message) may also be useful. Something as straight-forward as "Please do not forward this message without permission" should be legally adequate as well as honored by most recipients. It is hard to see any advantage to traditional notices.

    For what it is worth, perhaps a simple disclaimer on the AE website and info section here @ Blogspot stating that any email is subject to quotation in part or in whole would be sufficient.

  3. I am not a lawyer, but I did take a course on intellectual property law when I was a graduate student. Yes it is illegal to make a verbatim copy of someone else's work, be it writing, art, photography, video, music, etc. The copyright holder also retains the exclusive right to create derivative works. For example, in one case I remember reading about some fan of the Rocky series wrote a script for a sequel to one of the movies (I forget which one, maybe Rocky IV or V). Obviously, that's against the law because he's essentially profiting off the previous work of another to promote his own film script. This case also applies to "fan fiction", the stories that fans write as sequels/side-stories to some of their favorite games and movies.

    However there is also something very important in copyright law called the fair use doctrine. This is a very important piece in copyright law, and in fact many court cases basically boil down to whether the alleged infringing work qualified as fair use or not. From Wikipedia:

    Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

    The fair use doctrine is why, for instance, on The Daily Show Jon Stewart and crew are able to freely show viewers clips from other news networks like CNN and ABC without getting their pants sued off. I'd have to dig up my law book and study it closely, but from what I recall and understand I think that your sharing of e-mails on this blog is completely legit. In fact I bet that you're much more generous than other groups who post e-mails on the internet without asking for the consent of nor notifying the original author.

    In short, I don't think you should worry about sharing e-mails, as it (seems to me) is clearly an exercise of the free use doctrine as outlined in US copyright law. So its very unlikely that you're doing something illegal, and even less likely that someone is going to file a lawsuit against you (and even less likely that they would win). The vast majority of the populace is completely ignorant of intellectual property laws. So I highly doubt anyone is going to label the ACA as "evil" for this practice, but who knows.

  4. Copyright is a complex subject, and like much involved in copyright this type of publication is not a black and white issue- and ethics and the law do not necessarily go hand in hand. I'll give an example below. ^_^ Anyway, I don't believe you are committing infringement. (Copyright fraud is sort of a confusing term, and usually refers to claiming copyright on something you have no claim to.)

    I have to disagree with you on one point: copyright experts do not agree that it is unethical to post something without permission. ^_^ Satire, parody, criticism, and similar legally protected areas are often ethical and expressly against the author's wishes. For more info, check out writings by Georgia Harper (UT), Lawrence Lessig, Siva Vaidyanathan, Michael Geist, William Patry, Jessica Littman, and other people who regularly write about copyright. Check out the 2 Live Crew and the Wind Done Gone copyright cases for some examples. (Also, if you like the Michigan source, check out Molly Kleinman's blog.)

    Your understanding of how copyright currently works when something is created is correct- anything written down is copyrighted as soon as it is instantiated in some format. However, there are specific exemptions and related doctrines that might apply to this particular situation.

    First, the concept of the implied license could come into play. This isn't necessarily the most reliable argument, but if such behavior is common (and in this circumstance, the publication of email in this manner is certainly common behavior), the author should expect such behavior on your part.

    As the above poster pointed out, though, you are probably covered under Section 107 of Title 17, the exemption of fair use. It specifically exists for commentary, criticism, news, and similar areas. We can get into a formal fair use evaluation, but I don't think that's necessary now. Just note that you can take advantage of fair use even against the copyright holder's wishes. That is one example of what I was referring to above- there are some situations in which such behavior may be ethical, and some in which it might not be.

    Anyway, ethically and legally you're probably clear. I might hesitate if the original message asks you not to disseminate it further. At that point, though, it just matters how risk-averse you are.

  5. While I don't have an issue with it personally, I think I normally post parts without giving details that might identify the sender--as I just did on my most recent post. However, it probably wouldn't hurt for us to have disclaimers at the tv-list link saying that whatever we receive is subject to publication...?

  6. Another non-lawyer, but I don't see how it could possibly not fall under fair use:

    "the fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

    Putting it up on a blog and responding is easily criticism and comment, could be news reporting, and could be teaching. I have a hard time believing such a suit wouldn't be thrown out .

  7. I am not a lawyer, but from my understanding of fair use, publishing sections of an email for critical commentary purposes with no commercial gain would almost certainly be counted as fair use by a US court.

  8. Well, Russell, if you're worried about ethical issues, we could put up a disclaimer — as PZ and Ed Brayton do — alerting our email correspondents that we reserve the right to publish or respond publicly to any and all emails (especially threatening ones, though we don't really get those the way PZ does) we receive, either on the TV show, the blog, or both. and so caveat scriptor.

    As for the fair use thing, I don't know the precise wording of the law, but it is the case that viewers of the show send us emails with the expectation of some kind of interaction/response, just as newspaper and magazine readers send letters to the editor with the expectation of seeing it printed. So I don't think anything we do with emails is on shaky legal ground.

  9. ChaoticSupernova: Copyright is one of the most stupid who-cares-about-it law ever!

    Well, copyright owners care, that's who. But we're talking about emails, not intellectual properties created by writers and artists who deserve fair compensation for their professional labors.

  10. Like everyone else, I am not a lawyer. My understanding has been that quoting a complete email without permission is a violation.

    Fair use would only protect you if you were quoting a small piece (relative to the whole). I agree with most people here that your use (criticism/commentary) is within the realm of fair use, but even with fair use you can't just reproduce a whole works verbatim. John Stewart only provides clips for a reason. He is showing a small piece (relative to the whole) and so fair use applies.

    If he were to run an hour long show taking apart a singe half hour news show line by line, it would not be covered by fair use as it is not an excerpt, but rather the whole of the work that is being duplicated.

    Another way to look at is that the law doesn't see a difference between an email and a book. In a 200 page book you can quote a few pages verbatim and make comments and that is fair use. Those same comments in conjunction with quoting 190 pages of the book, means you broke the law.

    Now email messages are often short and quoting and knowing what constitutes a small fragment is much tougher.

    That said quoting complete or mostly complete emails with attribution is pretty standard (if possibly illegal) on blogs and websites.

  11. This is slightly OT but richarddawkins.net no longer posts complete articles in its news pages, as it did up to about a year ago. Now it's usually the first couple of paragraphs, plus a link to the original.

    It's less convenient for reading, but probably more legal.

    As for emails, fair use would seem to suggest (IANAL) that short extracts would be legally acceptable, but if you really want to post complete emails you probably need a disclaimer or warning on the site, to the effect that you reserve the right to do this (as Martin mentioned PZ Myers does). I assume this would only be legally valid, however, if the address used for the email was only available on the same page as the disclaimer, otherwise someone could claim they sent the email without seeing the disclaimer.

  12. Take a lesson from the religious. The correct thing to do is to immediately delete those emails which challenge your beliefs, rather than to post them.

  13. I'd love to see a Leonard "J." Crabs style legal battle posted! That was always my favorite section to read on SA's front page.

  14. If I may opine:

    Wouldn't you generally agree that whatever ethics and morals we have are basically decided as a society on whole at present? Whatever benefits mankind the most at the present time? Something to that effect anyway. I'd think that even though it's a "law" (remember not all laws are "just") but the general populace has the opposite feeling or just "doesn't give a damn" then I'd see nothing wrong as long as it didn't harm that individual.

    If, per se, the email posted somehow caused harm to the person then yes it would be in the best interest not to post....but how are we to know that? I'd say case by case basis is all we can go by.

    Do what YOU feel is the right thing. There's nothing WRONG with asking permission to post someone's email....so I don't see anything wrong with continuing it.

  15. Hmmm...sorry, but I don't buy it. How is this any different from citing a source in an essay or something along those lines? If the person explicitly TELLS you NOT to use the material, of course you shouldn't, but otherwise, as long as it is clear that you are quoting someone else and not trying to use the words as your own, I fail to see how it's a copyright issue. If the other party doesn't explicitly tell you NOT to post the message, I think it's perfectly legitimate to use it as an explicitly marked quote on this blog without including the person's personal info.

  16. Nephlm, using the entirety of a work would work against a finding of fair use, but there are situations in which using the entirety of a work could be considered a fair use. You have to look at the evaluation of fair use as a whole. Those factors include the nature of the work, the amount used, the purpose of the use, and the effect on the market. When it comes to email, I think you still have a pretty strong fair use argument even if you do quote the entire thing (depending on the specific circumstance).

  17. Not a lawyer, but I would hope that you could either get permission to reprint the entire mailing, or use fair use to post snippets to which you reply. Why? Because the alternative would make it too easy to create accidental straw men.

  18. To quote my prof:
    "It's only plagerism if you don't quote the source".

    Get an email address that states the purpose, for example:

  19. IANAL, but...

    This reminds me of some of the dust-ups on YouTube between YouTube creationists and their YouTube atheist critics, including the filing of DMCA claims that were all rejected because of clear instances of Fair Use.

    I guess the key point to take away is you shouldn't just repost a letter verbatim and let a work self-destruct under its own contradictions.

    You must comment/criticize explicitly to be sure you're engaging in Fair Use.

    Also, Fair Use is a *defense* against prosecution; You can still get sued and have to shell out money to prove you are exercising Fair Use under existing copyright law.

    Also, while copyright violations typically involve someone trying to *illegally profit* from someone else's work, even if the violation generates no profit and is just an attempt to get the word out or show your enthusiasm as a "fan", you could be shown to be diluting the market value of the copyright holder and still sued for damages.

    I think some copyright holders really shoot themselves in the foot when they aggressively sue their own fan base, but that's another discussion. Smart Copyright holders look the other way and only go after the worst offenders.


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