[ih] Archive of internet-history email (and others)

[Karl Auerbach]

On 3/6/25 6:55 PM, Jack Haverty via Internet-history wrote:

> OTOH, there are legal questions that I certainly don't know how to 
> answer.  E.g., who owns the material posted on the list?

I've got a couple of fancy looking certificates on my wall that suggest 
that I may have some insight about this.  (And those certificates 
require me to say that my comments below are merely for purposes of 
discussion and are not intended to be legal advice and that we are not 
entering into any attorney-client relationship.)

In general we are probably thinking of ownership of the various 
copyright rights.

Copyright is multi-dimensional - who created the work, when it was 
created, where it was created, how it was recorded on some medium all 
are factors on the creation end.  And at the usage end there are factors 
about how much is used, where it is used, how it is conveyed, how it is 
used, by whom it is used, whether it is used directly or transformed in 
some way.

The whole thing is complicated and often contentious (especially for 
music, but fortunately we are not dealing with that - at least I am not 
aware that someone such as Tom Lehrer has done a song like "Resetting 
TCP connections in the park".)

The rules/laws about copyright vary from country to country.  Even the 
foundational purpose varies.  Here in the US the purpose of copyright is 
to promote future creativity while elsewhere the purposes is often more 
to reward a creator with some control over his/her work.

So let's ask your question in the context of a US based author of an 
email to this list:

In the US copyright rights spring into existence only when the 
expression is recorded on a tangible medium.  To my mind that 
encompasses typing it onto the screen and memory of a computer.  In 
other words, if one adopts my interpretation, the rights spring into 
existence, at least here in the US, at the time you compose the email on 
a computer - i.e. before you send it.  Some may argue that the rights 
come into existence when you send it or when a mail server relays it or 
when it lands in an email archive.  None of those interpretations 
changes the fact that the owner of the copyright is the human who typed 
the text.  (Here in the US text created by non-human means, particularly 
AI, is not subject to copyright - this may change.)

So, if we conclude that the copyright rights (a whole bundle of rights) 
springs into existence at the time the text (or reply) is written and 
that the owner of those rights is the person whose fingers were on the 
keyboard then your question becomes one of either transfer of those 
rights, dedication of those rights to the public domain, or some sort of 
license of those rights.

When we join a mailing-list based discussion we are entering into either 
an express or implied agreement about rights licensing or transfer.  The 
totality of that agreement - a contract - is a blend of things like 
written terms of service of the e-mail list service system (in our case 
ISOC's systems), any additional terms that may have been added via 
negotiation (very unlikely in our context), and a rather vague but 
important set of way that these things are understood and practiced 
either by the participants/users of the email list or by other email lists.

That last part - our individual or collective, or even general - course 
of performance (i.e. the way we use or our expectations) are really 
important here because they can fill in gaps in any written terms of 
service or even to explain ambiguities or supersede, sometimes even in 
the presence of an "integration clause" in any written terms of service 
that say that any modifications must be in writing.  (The laws of how 
this all blends together can be quite complicated and vary a lot from 
jurisdiction to jurisdiction.)

I would argue that we are non-exclusively licensing our rights rather 
than transferring them.  The reason for this is that non-exclusive 
implicit licensing is rather common while there may be legal formalities 
required for an actual transfer of copyright rights.

I will make a rather bold assertion: That those of here are proud of 
what many among us have built - the Internet is an impressive thing that 
is changing the world.  I would assert that those of us here have the 
mental purpose of explaining that creation, the creation of the 
Internet, to posterity.  I would further assert that as such we each 
have in our minds the desire to disseminate to everyone and anyone our 
emails that are posted to this list.

If my assertion is accurate I would argue that we each have in mind a 
mental purpose to license our copyright rights to all potential readers, 
worldwide, and forever.  (Many of us may go further and have a mental 
purpose to transfer our rights to the public domain - but I'd then ask 
whether we would then feel comfortable with others changing or re-using 
our words without our assent, as would be possible in a fully public 
domain context.  I know that I am personally a bit uncomfortable with that.)

But what are we licensing to those unknown others?  Is it merely a right 
to read and make fair use (or transformative use), or are we licensing 
more broadly so that our text could be used, for instance, as part of a 
performative work, such as a movie script or Broadway musical.

My own sense is that we are licensing broadly, but that most of us have 
not envisioned use of our words for other than historical discussion and 
not for more expansive, particularly commercial, uses.  (A commercial 
book about the history of the Internet that makes use of our emails is 
an interesting middle case, possibly one that falls under Fair Use.)

There is a layer of fair use - I tend to look at Fair Use in the US as a 
legal right to use pieces of a work for the purpose of carrying out a 
kind of dialog with the author about the meaning or expression of the 
original work.  (My view is at odds with the views of many who have a 
rather more expansive conception of what is fair use - US courts have 
been wrestling with this, hence the still uncertain concept of 
"transformative use.")

On this mail list we are engaging in such a fair-use dialog, so it seems 
sensible to me to conclude that when we go back-and-forth we are 
engaging in exactly the intended core of Fair Use doctrine (and law).

In the US fair (and its step-child, transformative) use can be very 
vague and contentious around the edges.  Our emails to this list, and 
the collective archive, are valuable assets.  We will see them used, 
sometimes in ways that make us uncomfortable.  Here in the US we can 
express that discomfort via copyright litigation but there is a catch - 
until a work (i.e. our emails) are registered with the copyright office 
(at $35 a pop) we can't go into US Federal court to ask for our rights 
to be enforced.  Parts of the open source community have recognized this 
and have done explicit transfers of copyright ownership rights in code 
updates (and have jumped through the legal hoops to make such transfers 
- potentially a nuisance with dollar signs attached) and have registered 
the whole with the copyright office.

Concluding this rather long note: Here in the US those of us who create 
an email (even if it is a reply) own the copyright to our contribution 
to that email.  However we are licensing that ownership to others - such 
as to the email archive and to those who are reading our creations.  The 
terms of that license and full extent of its grant of rights (and any 
limitations on that grant) is not clear.

To borrow a phrase: In these matters our mileage outside of the US may vary.

	--karl--