August 5, 2003

• Reinventing the Wheel

  
  

  Last week I raised the question whether the Xanga Terms of Use have been consistently enforced, and I claimed that in fact they haven't.  This led to a extended discussion with many excellent blogs written in examination of the existing Terms of Use.  Several people made statements which I've been considering for the past several days. 

  
  

  BabalontheBride said, So this is the thing, other than something being illegal there is no reason to get your panties in a bunch about a post on Xanga.  These are the illegal things to watch for, Kiddy Porn and someone threatening bodily (or property) harm who presents a reasonable threat.  Her statement got me wondering whether or not the specific issues that I was concerned about on Xanga required a lot of angst and revision of the Terms of Use at all.  Perhaps, a look into the existing legal definitions and limitations would provide the answers to the questions I was asking.

  
  

  Is it true that the only things to watch for are kiddie porn and credible threats?  During the discussion last week, I was brought to consider an additional question raised by comments on this site and others.  If you have sent email to someone, do you have any legal right to control what is done with that email later?  This question was asked because in several different situations and for multiple different reasons, some people on Xanga have reposted email that they received.  Most everyone has an opinion on whether or not reposting email should be prohibited but no one I've talked to argues whether it is a legitimate question to be settled.  The obstacle to agreement seems to lie in whether we see email as private communication or as publication.  The ease of forwarding has led many of us to consider anything we receive in our Inbox to be fair game for passing on at our discretion. 

  
  

  Before we try to reinvent the wheel, (or even rewrite the Terms of Use) it is useful to see whether the question has been addressed with existing law.  See, it is a fact of life that while Xanga has the right to limit posting and content even further than the law would limit them, no corporation may decide to broaden the limits into areas prohibited by law.

  
  

  So is private email addressed in any area of law?  The answer is yes.  First, it falls under the legal right to privacy, and second it is addressed in copyright statutes.  The legal right to privacy is not new.  An 1890 article of the Harvard Law Review, discusses and defines the right to privacy.  I'm assuming that most people aren't going to want to take the time to read that entire article, so I'll give you a few of the highlights.  

  
  

   The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music. Neither does the existence of the right depend upon the nature or value of the thought or emotions, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, the thought, sentiment, or emotions is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as in a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public, -- in other words, publishes it. It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all. The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication.

  
  

  Now, I'm not an attorney, but I would imagine that an argument could be made that sending email might constitute publication because of the whole forwarding thing.  If I were going to play lawyer (and I've wanted to play lawyer at least once in my life ever since I fell in love with Perry Mason reruns as a child), I'd throw in terms like whether the sender had a "reasonable expectation" that the email would be considered "private" or "public" by the recipient.  At that point, copyright law steps in to close the breach. 

  
  

  Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  
  

  
  
  • To reproduce the work in copies or phonorecords;
    
  • To prepare derivative works based upon the work;
    
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
    
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
    
  • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
    
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

  
  

  Email is included in the broad category of literary works.  Anything you write, whether it is a letter, an essay, an entry into your diary, or an email is your intellectual property.  You retain the right to decide how or whether that work will be published unless you reassign that right to another in writing and with your signature (electronic signatures are valid.  When I was asked whether I would be willing to give permission to another Xangan to copy and distribute an essay I'd written at one of his business meetings, my email granting him permission is a legal transfer of my right.)

  
  

  Just in case there is any lingering question about the role of Xanga in all this rights and copyrights situation, the Digital Millennium Act defines the responsibilities of web service providers for upholding the copyright of authors - even of email.  From Title II of that act ... 

  
  

  Any material that was posted without the copyright owner’s authorization must be removed or blocked promptly once the service provider has been notified that it has been removed, blocked, or ordered to be removed or blocked at the originating site. …

  
  

  Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material…

  
  

  Under the knowledge standard the service provider is eligible for limitation on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it.

  
  

  So the bottom line is that regardless of Terms of Use, we do not have the right to repost email unless we have been granted that right in writing.  If you become aware that someone has posted your email, notifiying the Xanga Team obligates them to remove or block that email.  Let me be very clear, The Xanga Team is not legally required to police sites for copyright violations, so there need be no worry that fulfilling their obligation would require them to devote time and resources to such a project.  Aleph suggested and John has said that he's looking into ways to empower the Xanga Community to police itself.  This seems already to be the expectation of the Law.  You and I have to be willing to note when our rights have been violated and to make that report.  Xanga doesn't have to adjust it's Terms of Use, it just has to uphold our legal rights.

  
  

           

  
  

  I feel better today.  Thank you all for your kind words, prayers, and well-wishes. 

  • 10:22 am
  • 36 Comments