Re: Never ever send Pavel private mail unless you want him to publish

Re: Never ever send Pavel private mail unless you want him to publish

[Adam J. Richter]

>On Sun, 16 Mar 2003, Stuart MacDonald wrote:
>> I'm under the impression that postcards do not carry an expectation of
>> privacy due to their readability during transmission. I'd expect that
>> email would be found to have the similar lack of expectation were it
>> to be tested in court.
>
>That would cover disclosing information from email, but it wouldn't cover
>publishing copies of email.  The general opinion from lawyers and law
>students, when this has been discussed on misc.legal, has been that email
>would be treated similarly to regular mail.  So, copying the entire thing to
>a mailing list or usenet would probably be a copyright violation.  Quoting
>parts of it as part of an argument would probably be fair use.
>
>It's almost always considered extremely rude to unilaterally take a private
>argument public, which should be enough to stop civilized people, regardless
>of the legal issues.
>
>--Tim Smith

	I'm not a lawyer, so don't take this as legal advice, but it
sounds to me like your opinion conflicts with the 1988 US Supreme Cout
case Hustler v. Moral Majority, Inc.  which was explained to me
several years ago when ago, when I asked Yggdrasil's lawyers to look
into the question of reposting email without the author's permission
for discussion purposes (this was before DMCA, but I'd be surprised if
DMCA affected this aspect of fair use).

	Poking around google turned up the following brief description
of the case at http://www.isaacsonraymond.com/fair_use_doctrine.html:

| 	In Hustler Magazine, Inc. v. Moral Majority, Inc.,[29] Jerry
| Falwell, a nationally known fundamentalist minister, made unauthorized
| copies of a scurrilous parody of himself after it was published in
| Hustler magazine.  The Hustler parody portrayed Rev. Falwell as
| engaging in an insidious sexual exploit and getting drunk before
| delivering his sermons.
| 
| 	Under the aegis of the Moral Majority, Rev. Falwell?s conservative
| lobbying group, Falwell sent copies of the Hustler article, together
| with a letter soliciting donations to help finance his lawsuit against
| Hustler, to 29,000 of the organization?s major contributors.  There
| was no question that Falwell had copied the entire Hustler article but
| for ?eight of the most offensive words,? without any attempt to
| transform the original work.[30] Although the Ninth Circuit Court of
| Appeals determined that copying the original to solicit funds for
| Falwell?s lawsuit was clearly commercial,[31] it still ruled against
| Hustler stating that Defendant?s use ?could not have diminished any
| potential sales, interfered with the marketability of the parody or
| fulfilled the demand for the original work.?[32] The Moral Majority?s
| members, the Court observed, would ?probably not be counted among
| Hustler?s readers,? and therefore the defendants, while profiting from
| use of the copyrighted work, had not adversely affected the
| plaintiff?s market for it.[33]

Adam J. Richter     __     ______________   575 Oroville Road
adam@yggdrasil.com     \ /                  Milpitas, California 95035
+1 408 309-6081         | g g d r a s i l   United States of America
                         "Free Software For The Rest Of Us."

Re: Never ever send Pavel private mail unless you want him to publish

[David Schwartz]

On Sun, 16 Mar 2003 21:22:03 -0800, Adam J. Richter wrote:

>|         Under the aegis of the Moral Majority, Rev. Falwell?s 
conservative
>| lobbying group, Falwell sent copies of the Hustler article,
>together
>| with a letter soliciting donations to help finance his lawsuit
>against
>| Hustler, to 29,000 of the organization?s major contributors. 
 There
>| was no question that Falwell had copied the entire Hustler article
>but
>| for ?eight of the most offensive words,? without any attempt to
>| transform the original work.[30] Although the Ninth Circuit Court
>of
>| Appeals determined that copying the original to solicit funds for
>| Falwell?s lawsuit was clearly commercial,[31] it still ruled
>against
>| Hustler stating that Defendant?s use ?could not have diminished 
any
>| potential sales, interfered with the marketability of the parody 
or
>| fulfilled the demand for the original work.?[32] The Moral
>Majority?s
>| members, the Court observed, would ?probably not be counted among
>| Hustler?s readers,? and therefore the defendants, while profiting
>from
>| use of the copyrighted work, had not adversely affected the
>| plaintiff?s market for it.[33]

	There are really only two conclusions you can draw from this:

	1) This only applies to a situation where the primary purpose of the 
original publication is for the purposes of selling the item to 
produce revenue and therefore it's reasonable to judge the copyright 
violation on the basis of its affect on the sales of the original 
work, or

	2) You can violate copyright for commercial purposes so long as you 
don't cost the original publisher anything. In which case, any GPL 
violation is acceptable, since there's no "market" for a free work.

	DS

Re: Never ever send Pavel private mail unless you want him to publish

[Adam J. Richter]

On Mon, 17 Mar 2003, David Schwartz:
>On Sun, 16 Mar 2003 21:22:03 -0800, Adam J. Richter wrote:

>>|         Under the aegis of the Moral Majority, Rev. Falwell?s conservative
>>| lobbying group, Falwell sent copies of the Hustler article, together
>>| with a letter soliciting donations to help finance his lawsuit against
>>| Hustler, to 29,000 of the organization?s major contributors.  There
>>| was no question that Falwell had copied the entire Hustler article but
>>| for ?eight of the most offensive words,? without any attempt to
>>| transform the original work.[30] Although the Ninth Circuit Court of
>>| Appeals determined that copying the original to solicit funds for
>>| Falwell?s lawsuit was clearly commercial,[31] it still ruled against
>>| Hustler stating that Defendant?s use ?could not have diminished any
>>| potential sales, interfered with the marketability of the parody or
>>| fulfilled the demand for the original work.?[32] The Moral Majority?s
>>| members, the Court observed, would ?probably not be counted among
>>| Hustler?s readers,? and therefore the defendants, while profiting from
>>| use of the copyrighted work, had not adversely affected the
>>| plaintiff?s market for it.[33]

>	There are really only two conclusions you can draw from this:

>	1) This only applies to a situation where the primary purpose of the 
>original publication is for the purposes of selling the item to 
>produce revenue and therefore it's reasonable to judge the copyright 
>violation on the basis of its affect on the sales of the original 
>work, or

>	2) You can violate copyright for commercial purposes so long as you 
>don't cost the original publisher anything. In which case, any GPL 
>violation is acceptable, since there's no "market" for a free work.

>	DS

	I am skeptical of any claim that "there are really only two
conclusions you can draw from this" if those conclusions are not of
the form "x" and "not x" (and conclusions of that form don't need to
be predicated on anything to begin with), at least without an
explanation that all other conclusions are impossible.

	I'm not a lawyer, so please don't rely on my layman's opinion
here as legal advice.

	In the Hustler v. Moral Majority case, I believe that the
purpose for which the copying was being done may also have been
relevant in establishing that it was fair use.  The copying was being
done to discuss what Hustler had written, even if it was also being
done to raise money.  I assume that this was also the case with
whatever email Pavel had posted.

	In comparison, if you violate the GPL, by, say, producing a
proprietary compiler comprising substantial amounts GCC source code, I
don't see how that action would qualify as fair use to begin with.
So, I would think that if the copyrights were registered with a form
TX from the copyright office, that one could recover statutory damages
($25k per infringement?) even if there were no provable "actual"
damages.

	Secondarily, it's also worth noting that there is potentially
a market for GPL exceptions.

Adam J. Richter     __     ______________   575 Oroville Road
adam@yggdrasil.com     \ /                  Milpitas, California 95035
+1 408 309-6081         | g g d r a s i l   United States of America
                         "Free Software For The Rest Of Us."