Copyright on email

[Apollyon]

In a GQ started by pkbites asking a legal question about email, **Gfactor **quoted from a mailbag answer on How does copyright work? (Part 1) :

@Gfactor and ascenray

For example, if you send me a letter, I can show it to people or sell it, or even burn it for that matter, but I can’t publish a copy on a website or in a book without your permission.

Rather than trying to continue to hijack the (answered GQ), I’m reposting my question here, as it’s more germane to the mailbag answer:

How does this not-republishing of letters fit with email and the recent rulings rejecting the RIAA’s “making available” = copyright violation claims?

With letters the matter is clear: there is a single, physical copy of the letter. Photocopying it, or printing it in a book is clearly copying, and in breach of the original authors copyright. Email seems far less clear. For one, there are already an unknown number of temporary copies of the email as part of the process of sending and receiving it; it is rather more like a telegraph message that passed through many operators… but that aside…

What is the situation if I store the email sent to me in text format on my machine that is also set up as a file server? In theory I could give anyone a link to the file, allowing them to view the (notionally) same email that I received. Have I breached copyright? Have I only “made available”, and thus side-stepped the breach? Is this the same as “showing people” the letter in the quote above?

Additionally, if I can “show” someone a letter does it have to be in person? Can I read the contents to someone over a phone? (Or is that an unlicensed performance of the material?) What if I’m a video-phone or web-cam? Can I hold the letter up to the camera to show someone the original letter or have I just breached copyright by transmitting it?

[Gfactor]

How does this not-republishing of letters fit with email and the recent rulings rejecting the RIAA’s “making available”=copyright claims

It doesn’t much. The making available argument, which was a big stretch btw, says that a defendant infringes a copyright merely by having his file indexed on a peer-to-peer server. In other words, the RIAA claims it can prove infringement merely by showing an offer to distribute by making the file available for download. http://www.eff.org/files/EFF%20amicus%20brief.pdf The law isn’t especially well-settled on the issue. Some earlier cases contain statements that weren’t necessary to the holdings of the case (and therefore neither binding nor especially persuasive) that support the notion that merely making a file available for downloading is sufficient. On the other hand, the defendants probably have the better of the argument based what the statute actually says and have had some recent support from the courts. Even so, that has little to do with actual copying or downloading. None of those cases suggest that actual copying or reformatting of the file is ok.

So making a copy of the email’s contents onto a web page or printing it in a book is infringement. On the other hand there, are some tricky cases, that might or might not involve the making available concept. Take the opposite extreme: I send you and email, and you say to your co-worker–“That Gfactor is a moron, look what he just sent me.” And your co-worker reads the email on your monitor. Or you read it to your best friend over the phone. Showing someone something isn’t making a copy–it’s displaying one, and reading the email isn’t copying either, it’s performing it. 17 U.S. Code § 101 - Definitions | U.S. Code | US Law | LII / Legal Information Institute

The thing about performance rights and display rights is that they are only exclusive to the copyright holder to the extent they are done “publicly” http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106----000-.

html and publicly means:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So the argument there isn’t about whether you’ve distributed a copy. You’ve not infringed a copyright because the performance or

What is the situation if I store the email sent to me in text format on my machine that is also set up as a file server? In theory I could give anyone a link to the file, allowing them to view the (notionally) same email that I received. Have I breached copyright? Have I only “made available”, and thus side-stepped the breach? Is this the same as “showing people” the letter in the quote above?

Closer case, but even the EFF seems to admit that if someone copies the file to their computer, they’d be on the other side of the line, and so would you. So posting it on your server and making sending a link out to it might be ok, if the making available rule is rejected. On the other hand, I think you could make a good case that by sending an email, at least without a disclaimer, you might grant the recipient an implied license to forward the email.

[Apollyon]

Thank you for the reply Gfactor.

@Gfactor

The making available argument, which was a big stretch btw… None of those cases suggest that actual copying or reformatting of the file is ok.

So making a copy of the email’s contents onto a web page or printing it in a book is infringement. On the other hand there, are some tricky cases, that might or might not involve the making available concept.

Yes, copying the mail to my (hypothetical) blog seems clearly covered, which I why I’m curious about the seemingly less clear cut case of *moving *the email message I received (perhaps format shifted into a plain text or html file) into a directory that’s visible to my own web-server. This would seem to non-lawyer me to be, at most, “making available”, but not actual copying.

Take the opposite extreme: I send you and email, and you say to your co-worker–“That Gfactor is a moron, look what he just sent me.” And your co-worker reads the email on your monitor. Or you read it to your best friend over the phone…So the argument there isn’t about whether you’ve distributed a copy. You’ve not infringed a copyright because the performance or the display was not done publicly.

So then I *could *infringe if, to continue the example, I read out the contents of your email at a staff meeting? Or displayed it using an overhead projector for the fun and amusement of my hundred co-workers?

On a slight side note: given the massive use of email, and the prevalence of replying with quoted text, (or forwarding purportedly funny emails to ones entire address book), I suspect that almost every user of the medium infringes copyright regularly.