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A Double-Edged Sword: Copyright and Spam
Posted by James Grimmelmann on Saturday, November 30 @ 11:25:01 EST Copyright
Copyright law is the 500-pound gorilla of the online world; increasingly, that world is being shaped by copyright, rather than vice versa. Intellectual propertly law is so much stronger than any other legal or technological control that it's being asked to do all sorts of heavy lifting it was never designed to handle. Case in point: the eternal arms race between spammers and anti-spam activists has broken out in fresh battles on the copyright front.

In this corner, in the blue trunks, we have Habeas, which is selling a copyright-based anti-spam solution. Using the "patent-pending Sender Warranted Email (SM) system," Habeas is creating the ultimate whitelist . . . which boils down to a set of custom headers containing a message whose copyright Habeas retains. Mail a message with those headers without Habeas's permission and you're infringing copyright, which lets Habeas go after you for the big bucks. The business model gives a royalty-free license to use the headers to individuals; commerical opt-in lists (subject to verification by Habeas) pay a fee.

And in the opposite corner, in the red trunks, we have "Legalservicesdp," a spammer who wrote in to the Great Spam Archive to complain that an email was being published without the permission of the copyright holder. Interestingly, that particular email dated to 1997 and does indeed bear a copyright notice. The complaint wasn't exactly polished; it remains to be seen whether a more formal cease-and-desist letter or a lawsuit will follow.

Word of the day (from the Great Spam Archive's reply): barratry, which Dictionary.com defines as "The offense of persistently instigating lawsuits, typically groundless ones."

 
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· Habeas
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Re: A Double-Edged Sword: Copyright and Spam (Score: 0)
by Anonymous on Sunday, December 01 @ 14:13:12 EST
I see this argument as somewhat similar to the deep linking arguments. They want the benefit of using the internet protocols without giving up the implicit licence to copy submissions that is required.

The fact that they put a copyright notice is completely irrelevant -- everything you author is automatically copyrighted and all rights are retained by default. Either all email forwarding is copyright infringement or it is not. It is obvious that most email is not explicitly authorized to be copied. Since rights are retained by default, an explicit statement to that effect is redundant and has no importance.

Since long standing convention and common knowledge is that all email agents have "forward" functionality, I would argue that if you send email, you are implicitly agreeing to the common practices of that protocal. So the act of sending itself authorizes copying within the context of the internet. The alternative would hold that everyone who forwards an email message without explicit approval is infringing copyright. That would include all the intermidate email transfer agents and anyone who hits the "forward" button. If that is the law, then email itself is illegal.


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Re: Not A Double-Edged Sword (Score: 1)
by wendy on Tuesday, December 03 @ 12:42:02 EST
(User Info | Send a Message) http://cyber.law.harvard.edu/seltzer.html
What about merger? Arguably, the "copyrighted" headers are functional boilerplate required to interact with the Habeas mail processing system, and the spammer-copyist is reproducing them for their functionality, not the expressive content.

This reminds me of Sega's attempt to use trademark to block manufacture of game cartridges interoperable with its console -- part of the cartridge-console initialization sequence flashed the "SEGA" trademark on the screen. Accolade copied the code, and with it "falsely" displayed the SEGA trademark. Sega lost on both copyright and trademark claims (Sega v. Accolade, 9th Cir.).


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