Klarinet Archive - Posting 000927.txt from 1999/03

From: LeliaLoban@-----.com
Subj: [kl] Copyright (was [kl] Gilbert and Sullivan parody)
Date: Tue, 16 Mar 1999 23:38:03 -0500

Part II, continued from the previous message....

With impeccable timing, I posted the first part of this message into the same
Digest where Mark asked us to curtail the off-topic posts. I apologize for
this, Mark, but I decided to go ahead and send, rather than leave off in the
middle.

According to the Library of Congress Copyright Office, the popular notion that
anything posted (anonymously or not) as correspondence on the 'Net
automatically falls into the public domain is mistaken. Normally, purely
private correspondence remains the property of the person who writes it (or
that person's estate), not the person who receives it. (Thus J. D. Salinger
currently refuses to permit publication of his letters that people have saved
and now want to compile into an anthology.) However, if I understand
correctly, e-list and bulletin board messages share the legal status of
letters to a magazine or newspaper that's normally distributed to the public.
By sending to a magazine or e-list, we convey specific rights. By subscribing
and posting to this list, we give Mark Charette the right to distribute our
mail to the whole list, to compile it into the digest, and to keep it in his
Archives. We also give each other the right to quote this mail in replying to
it. However, these are specific, limited rights. Since we have not put our
mail in the public domain, some third party does not have the right to copy
articles out of Mark's archives, for instance, and publish them somewhere else
without permission, let alone without attribution.

Formal copyright with the Library of Congress is a good idea because it makes
ownership much easier to prove, but common law copyright is automatic the
instant the work is created and remains in effect unless the writer either
says explicitly (either in the document or elsewhere) that he or she
relinquishes the material into the public domain, or knowingly abandons the
copyright. "I Am The Very Model of A Newsgroup Personality" concerns the
Internet, a phenomenon so recent that even common law copyright couldn't have
expired on anything discussing the subject. No notice from the author placing
the lyrics in the public domain has appeared on *any* posting of the song I've
seen so far. Nobody has come forward with evidence that the author *gave up*
the rights by willfully ignoring piracy. Therefore I must assume that, like
most professional writing, this work *isn't* in the public domain.

Here's one reason copyright theft matters: For all we know, the author may
have sold some or all of the rights to these lyrics already, or may have given
the song to one of the many amateur publications that only pay in copies of
the issue, or to a non-paying site (such as www.sneezy.org, where Mark
Charette scrupulously asks permission before posting things). The contents of
such publications are copyrighted, whether or not the publisher pays
contributors and whether or not the publisher obtains formal copyright. The
author may have sold some rights and retained others. The author, the
original publisher and subsequent buyers all may have sold various subsidiary
rights. The great majority of editors, even at the sleaziest tabloids, refuse
to publish material from a truly anonymous source unless it arrives under the
personal guarantee of a trusted in-house writer protecting the source's
identity, and even then, most publishing houses demand that at least one
senior editor know who Deep Throat really is. Thus, if the unknown person who
first passed this song along on the 'Net did indeed take it, not from some
Internet site where it's possible to post anonymously, but from a professional
publication, then the author may have hidden from the public behind
"Anonymous," but his or her identity is almost certainly known to an editor
who accepted the piece on the publisher's behalf. Most publishers monitor
for violations, in part to protect themselves from charges that they used or
sold rights they didn't own.

Consider what could happen if "Anonymous" is actually well-known (Mark Russell
or someone like that) and his or her work is worth something. Even if the
author is Nelbert Nobody, consider further that the copyright may now belong,
not to Mr. Nobody, but to a magazine or performing arts company with plans to
distribute the work -- and let's say it's a company owned by a conglomerate
with the financial resources to sue. In that case, then the stakes for the
person who passes along copies could turn out to be a lot higher than a
squabble on a mailing list or a newsgroup. The people now passing along this
material had better hope it's not purloined from the script of a soon-to-be-
released Disney cartoon musical, for instance, because Disney vigorously
pursues copyright violators in court, even when the violaters are "little
guys" who never meant any harm and may not have realized they were breaking
the law.

Most writers don't work for Disney. When we insist on credit and permission,
it's not just because we're such conceited twits that we imagine ourselves on
the fast track to fame and fortune (with our four readers apiece...), but for
the opposite (if less interesting) reason that we need to stay in print and
can't afford to lose our reputations. The paying market is small. The number
of wannabe writers is large. Editors don't need writers with problems when
they see 500 other hungry writers standing behind us in line.

Maybe this is a difficult concept for someone with job security and a salary
or other predictable income (from practicing medicine, for instance), but
Internet piracy is not a victimless crime or a trivial crime. It steals a
writer's already-precarious livelihood. Two wrongs don't make a right. The
fact that an item has already appeared numerous times without attribution
("Hey, not my fault, too late to do anything about it!") doesn't make it okay
to repeat the crime again. Yes, dammit, it's a crime. Is it legal to walk
into an art exhibit and decide that since all those paintings are on public
display, it's all right to photograph one, make posters from the photo and
distribute them without the artist's permission? Of course not! Then why
would anyone think it's all right to take a writer's song and distribute
unauthorized copies of it to several hundred people on a mailing list? That's
as wrong as receiving and passing any other stolen goods, IMHO.

Editors are so hypersensitive about copyright questions that a piece that
"gets loose" can become unmarketable. Let me stress that I'm not exaggerating
this concern. A cloud over attribution can turn into an author's worst
nightmare. I've heard fellow panellists at science fiction conventions
describe being unable to market work plagiarized in fanzines. The worst that
can happen is that not only the writing but *the writer* becomes
unpublishable. Losing one sale because of clouded copyright is a demoralizing
experience at best, but at worst, it's a professional catastrophe. For
instance, what if someone comes forward now, to claim authorship of the
Gilbert and Sullivan parody? What if several people claim to have authored
it? For practical purposes, the real writer could end up looking as bad as
the liars, even if he or she has a formal copyright and/or proof of authorship
that would hold up in court, because we're not in court: few people on the
'Net will *see* the proof in any indisputable context and rumors that "So-and-
so is trying to convince people that such-and-such" will just keep flapping
around. That author's reputation may remain questionable forever. That
stinks.

I just received an e-mail from someone who assumed that because I talked to
the Copyright Office about Internet piracy, I must have been ratting out the
person who posted the "Newsgroup Personality" lyrics. No. I should have
spelled out in my previous message that I made those inquiries several months
ago, in order to find out what would happen to my own copyrights if I posted
articles on a webzine where I'd been invited to write a review column.

Lelia
~~~~~~~~~~~~~~~
"Don't pick it up if you don't know where it's been."
--Mom
~~~~~~~~~~~~~~~

-------------------------------------------------------------------------
Unsubscribe from Klarinet, e-mail: klarinet-unsubscribe@-----.org
Subscribe to the Digest: klarinet-digest-subscribe@-----.org
Additional commands: klarinet-help@-----.org
Other problems: klarinet-owner@-----.org