This is not legal advice, no attorney-client relationship is hereby established, etc. etc.
Not to beat this one to death - just to clarify some inaccuracies and hopefully a summary.... ----- Original Message ----- From: "John Galt" <[EMAIL PROTECTED]> To: "Jeffry Smith" <[EMAIL PROTECTED]> Cc: "Sam TH" <[EMAIL PROTECTED]>; <[email protected]> Sent: Monday, February 26, 2001 3:00 PM Subject: Re: [Steve Lidie <[EMAIL PROTECTED]>] Re: xodometer licensing > On Mon, 26 Feb 2001, Jeffry Smith wrote: > > >John Galt said: > >> On Sun, 25 Feb 2001, Sam TH wrote: > >> >This statement of freely available, however, also conflicts with the > >> >examples given for "freely availableness", such as usenet. Nothing > >> >about a usenet posting implies free redistibutability. In fact, > >> >Usenet postings are all copyrighted, and unless specific other license > >> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > >> Case law? Cite? > >> > > > >Since, according to Copyright Law, all writings are copyrighted unless explicitly stated otherwise, yes, Usenet postings are copyrighted. > > Said copyright law was made by the Berne Convention, which postdates this > license. In fact the previous standard was "PD unless stated" (that's > actually a stretch, the real law involved was that no rights were reserved > unless specifically stated, hence the "all rights reserved" language of > many copyright notices). The Berne Convention predates everything being discussed here. The Berne treaty was first signed in the late 1800's. The lack of formalities principle I believe has been part of, if not some of the earliest versions, the versions at least since Stockholm in 1967. So, the "PD unless stated" principle hasn't been true around most, if not all, of the world for a long time with the last converter to "copyright by default" AFAIK being the U.S. in 1988. Further, the "all rights reserved" language was used to gain protection in other countries part of the Buenos Aires convention without complying with certain formalities in those countries provided the formalities were complied with in the originating country - it was to soften the administrative complexity of the "PD unless stated" rule; "all rights reserved" language has never been a requirement and was a means to gain protection in countries without necessarily having to comply with all the formalities in each country. As for the original issue of USENET postings (or any other work for that matter), copyrightable works made after March, 1988 obtained copyright protection in the U.S. without any formalities (and I believe the rest of the world - I am not sure if there were in 1988 (or exist between then and today) any other countries with formalities requirements as a predicate to copyright protection)*. As for those made before March, 1988, they would have had copyright protection in all other countries in the world not requiring formalities where the work was published and would have obtained U.S. protection by complying with formalities (namely a proper copyright notice between 1978 and 1988). So just because a work may have been in the public domain in the U.S. did not necessarily mean it was in the public domain elsewhere - this point has significance when worldwide distribution of works on the Internet is considered. Further, even if a work wasn't afforded copyright protection by failing to comply with formalities (leaving aside 405(a) of the U.S. Copyright Act), it must be remembered that only such work failing to comply with formalities is in the public domain; all other modifications, development, etc. after that time may have (and probably will have) copyright protection automatically and no contract alters that principle. In another post, ex-post facto was discussed. It doesn't apply. AFAIK ex-post facto applies only to criminal laws and so is irrelevant. The U.S. Constitution's contracts clause is probably closer on point but it only applies to the states, not the U.S. government. You will note that neither of these doctrines are raised in Eldred because they are not applicable. As you can see this is complex stuff and I have tried to speak here generally to provide some basic understanding (which I think is important especially in an international context such as the Internet). Each case depends on its facts and so for particular questions you should consult a competent (copyright) lawyer. Do not rely on the above as being true in all cases. * Copyright registration is still needed in the U.S. for enforcement but that is a different issue than copyright protection. > > > >jeff > > > > -- > Galt's sci-fi paradox: Stormtroopers versus Redshirts to the death. > > Who is John Galt? [EMAIL PROTECTED], that's who! > > > > -- > To UNSUBSCRIBE, email to [EMAIL PROTECTED] > with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED] > >
