Copyright & Email Replies

It's interesting that freecycling has ended up becoming quite a learning adventure into the proper application of intellectual property laws and rights.

Many get easily confused about what trademarks vs patents vs copyrights are really about. Used properly these are all good things that allow our economy and society to function better. That's why they were invented. But misused or misunderstood, they can lead to much pain and abuse and injustice.

In general trademarks, patents, and copyright are all intended to protect "profits" in use in commerce and should never be used to control free speech -- although some misguided corporations and individuals keep trying to do this.

On the trademark front we've proven this a couple of times thanks to the Ninth Circuit Court of Appeals. See http://freecycleforever.org/history/ to read more on the trademark front.

On the copyright front we have not had any lawsuits (and I hope we won't), but here is an important point for all:

When replying to an email it is OK (in terms of copyright) to include the entire previous email (and even email chain) that is relevant to your reply.

It may not be good etiquette because this may make the email rather large and clog the digest version of an email list. It may also confuse your audience because people may not know exactly what point you are replying to. However from a legal standpoint it should be just fine because you are engaged in free speech -- debate with give and take. The discussion is enabled by including prior emails for reference.

I know that others have raised "copyright" as a reason that entire emails should not be included in reply emails, but this is not correct in so far as I've been able to determine as long as the intent is to enable discussion and not to reproduce a work to deny someone else from getting compensation for that work.

Including entire previous emails in replies is:
1) common -- billions of people do it daily.
2) easy -- most email programs do this automatically and it takes work to prevent.
3) appropriate -- so that the points and counter points can all be read in context to see if they are really logical or not.
4) expected -- so that debates are not just one sided, you need multiple points of view to understand the different points -- there are multiple sides to every discussion.

This is all protected by the "fair use" doctrine in addition to not being commercial speech but rather free speech. By commercial speech I mean communication that is intended to earn money in some direct way -- like in advertising or publishing. Even in commercial speech "fair use" can protect someone that is quoting another.

In contrast, if you use someone else's material in a way that harms the commercial value of the work -- for instance republishing large sections of material that someone would otherwise have to buy. This is most likely a copyright violation that is not protected by the "fair use" doctrine. The original author was generally paid money to create the work and thus it is in turn sold to recoup this cost as well as make a profit on it so the author and others involved can make a living.

Law can be a tricky and complicated area but hopefully this explanation makes sense to most people.

Please note that I am not a lawyer and I'm not giving you professional legal advice. However this does not block me from discussing such situations or you from coming to reasonable conclusions based on the information presented.

For references, please see:
1) "My posting was just fair use!" at http://www.templetons.com/brad/copymyths.html
2) http://w2.eff.org/IP/eff_fair_use_faq.php
3) http://randazza.wordpress.com/2010/12/26/perfect-10-thinks-that-dmca-takedown-demands-should-be-protected-by-copyright/

Copyright Sanity

Thank God a judge has recognized there should be reasonable limits on DMCA (Digital Millennium Copyright Act) claims:
"A federal judge on Wednesday gave more weight to the concept of "fair use" when he threw a lifeline to a Pennsylvania mother's lawsuit against Universal Music."
see:
http://news.cnet.com/8301-1023_3-10021999-93.html
http://www.eff.org/files/filenode/lenz_v_universal/lenzorder082008.pdf

To date, corporations had shown little restraint in filing DMCA based copyright infringement claims willy nilly without considering whether they are reasonable or not. They have thrown all sorts of infringement claims at others whether or not they were valid. Most people so threatened have not been able to protect themselves and so simply backed down even though they had not done anything wrong. Corporation with deep pockets were able to get away with being copyright bullies with no adverse consequence if they were wrong.

Now corporations will need to be more careful and considerate. Copyright has distinct limits and it is important for those limits to be better understood, recognized, and enforced.

Copyright Voice of Reason Muffled

I was dismayed to learn that William Patry, a well known authority and articulate voice of reason regarding Copyright, has chosen to end his blog at http://williampatry.blogspot.com/. Please read Bill's blog for his reasons. Luckily he has recognized there is value in his past blog posts and is working to make an archive of these available.

My Dad gave me a sign for my desk that says:
"Illegitimus Non Tatum Carborundum"
Translation: "Don't Let the Bastards Wear You Down."

Let us hope the bastards, don't wear the rest of us down.

[Update: Thankfully, as of 8/8/8 the archives of William Patry's most excellent Copyright blog have been restored so others can now read and learn once again.]

Hurray for Stephanie Lenz and EFF

Corporations and other large moneyed interests want to control as much as they can. Their goal is to maximize profit and not watch out for the rights of regular folks unless it makes them more money. (That's just the nature of the beast, although every now and then there are exceptions like Ben and Jerry's.)

Luckily there are some brave souls who stand up for their rights and in so doing protecting those rights for the rest of us. People like Stephanie Lenz. Universal Music was a bully and forced YouTube to take down a short 29 second baby video just because it happened to include a snippet of Prince's "Let's Go Crazy".

Universal Music should have applied a reasonableness test to this before making the request. Likewise, Google and YouTube should have used better common sense in reviewing the situation before taking the content down as well. But it is usually cheaper and easier to stick it to the little people rather than push back on other corporations. Money talks.

Thankfully EFF (whom I support) stepped into help Stephanie and they have taken the fight back to Universal Music. Hopefully this will make corporations more careful about respecting the rights of others rather than trampling them willy-nilly.

For more information on Stephanie's case, please see:
http://www.eff.org/deeplinks/2007/07/mom-sues-universal-music-dmca-abuse
and
http://www.mercurynews.com/ci_9932068
and
http://news.cnet.com/8301-1023_3-9994345-93.html

Basically corporations will do whatever they can get away with, even if it is not right or legal.

For more information on EFF and their work to protect free speech from copyright and trademark abuses, please see:
http://www.eff.org/issues/ip-and-free-speech