August 7, 2003

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  Making it Personal

  
  

  The best selling theological works of the 20th century were not written by a professional theologian.  They were written by a Professor of Medieval Literature at Oxford University who discribed himself as a "cranky prig".  When asked how it was that he considered himself qualified to offer his opinion on theological matters, C. S. Lewis said that he had often observed that the layperson has an advantage when communicating to other laypersons.  The professor sees all the myriad possibilities implicit in the question, the layperson or underclassman is able to hone in on just what it is that the questioner really wants answered.  In this way, I approach the questions of "right to privacy" and "copyright" which I raised on Tuesday.  I want to know what they mean for me personally.

  
  

  I approach the right to privacy from my sense that I have the right to determine when and how information about myself will be shared publicly.  I approach copyright from the perspective of a writer.  I want to know what my rights and obligations are legally and morally.  I want to know when I have rights to my work, and when I have transferred that right to another.  So I ask questions.  I ask my attorney, and I look it up.  Earlier this week, I posted some information that I've found regarding privacy, copyright and infringement.  I suspect that in my effort to stick to general principles, I made things confusing for some.  So let me reframe the question,

  
  

  Does anyone have the right to post private information about me, to use my name or likeness without my permission?  If I send a poem, essay, photo, screenplay, short-story, book review, interview, or any other original work through email, have I "published" that material, have I forfeited my right to privacy regarding my work?  And, do I retain copyright of that work?

  
  

  In regard to the right to privacy, I quoted a long section which I will quote in part here.  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.  There are distinct limits to the right to privacy when we look at email.  If you send or receive email through the server where you work, recent case law says that your employer has the right to view that mail.  However, this is not a blanket severing of your rights.  An employer may have occasion to review corporate email, but not to publish the contents of that mail.  In other words, you don't have any reasonable expectation that the naked picture you are sending your husband will be considered private.  Those guys down in tech support may see it, too. But, the fact that your privacy is limited, doesn't mean that you have lost entirely the power to fix the limits of the publicity that photo will receive.  If you get a few knowing looks at the company Christmas party, suck it up.  If that photo winds up all over the Internet, your rights may have been violated. 

  
  

  Persons have a right to Privacy.  Mara pointed out that Stanford maintains a website which answers general questions about law.  Under the section of Copyright Law dealing with Releases it says, "Every person has the right to be left alone - this is called the right to privacy. A release is needed to use a living person's name or image in a manner that constitutes an invasion of the person's right to privacy."  There are several ways in which a person's right to privacy may be invaded including false light, disclosure of private facts, and intrusion.  

  
  

  It is sometimes permitted to quote another person's work under the Fair Use Clause.  When I quoted BabalontheBride in my previous blog, I did so believing that quote to be legally Fair because I quoted her for the purpose of placing my commentary in a specific context.  Fair Use generally protects a person who quotes a portion of a work for purposes of review or commentary.  I say generally, because a number of successful suits have been brought even against persons publishing on the Internet in which the author received damages for and/or injunction against having his work published because the use was determined to have been Unfair.  Standards for determining Fair Use include:

  
  

  1. Transformative - You use the quoted material to create a new work, provide a new perspective.
  2. The Nature of the Copyrighted Work - Quoting factual material such as found in biographies is more likely to be allowed than quoting a novel.
  3. The Amount and Substantiality of the Portion taken - The less you take the more likely your copying will be considered Fair Use.  The one exception to this is when creating a parody of the original work in which case the courts have allowed larger portions of the work, even the "heart" of the work to be copied.
  4. Effect of the Use upon the Market -  Does your use deprive the owner of income or undermine a ne wor potential market for the work.
  5. The "Fifth" factor, Are you Good or Bad? -  Fair use involves subjective judgments and is often affected by factors such as a judge or jury's personal sense of right or wrong.  So if your use of the material is considered offensive, you could still lose an infringement case even if in every other way it appears that you complied with Fair Use.

  
  

  As an author, I email all kinds of material to different people for different purposes.  My poems, short stories, articles, book reviews, and essays go out to people who critique, people who edit, people who publish and some people because I can count on them to always tell me that I'm brilliant.  My work doesn't have to be valuable monetarily in order for me to desire to retain my rights to determine how my work is used or published.  It's MY work.  I want to know whether emailing that work in any way diminishes my rights in regard to that work. 

  
  

  If the Xanga Team is not going to protect me from uses of my work which infringe upon my rights, I want to know that.  Well, really that's not the whole truth.  I don't want to know whether the Xanga Terms of Use cover the issue of my potential invasion of privacy, or the infringement of my rights to my work.  I want to know that Xanga has policies and procedures in place to block or remove material that invades my privacy or infringes upon my rights.  See I believe that you have the right to speak your mind, express your ideas and argue your viewpoint.  But, in upholding and promoting your rights, I wish in balance to retain my own rights. 

  
  

  The Stanford website has a section advising websites on how to stay out of trouble.  They post five guidelines: 1.  Assume the material is protected.  2.  Read Click-Wrap Agreements  3.  Remove Unauthorized Material  4. Investigate Claims Promptly  5. When in Doubt, Seek Permission.  

  
  

       

  
  

  I have been verboodled.  Somehow (probably because I'm WAY behind on my reading here, I missed the fact that I had been verboodled until the lovely and efficacious Daffodilious called it to my attention.  But I must say that it ranks in the top ten coolest things ever to have happened on Xanga as far as I'm concerned.  I kow I'm not the only person verboodled in that post, and the fact that I am in such exalted company only makes it better.  (And just because I'm not sure this dead horse is COMPLETELY dead - I will point out that Virgil's copying of the unique styles of different Xanga writer's is Fair Use as a parody.  Plus its funny.)

  
  

       

  
  

  I welcome any commentary and discussion of the ideas I express here.  Comments that question my conclusions are valuable in helping me to see where I may have overlooked a point in thinking through an issue.  When such points are raised, I have in the past and will continue to consider them and revise my statements when I am persuaded that such revision is needed.  I am not fighting with anyone nor have my feelings been hurt by comments left here over the past couple of days.  I very much appreciate that some of my friends have expressed their concern and I thank them for it. 

  
  

  Oddly enough, a LARGE number of people (that would be at least 3  ) have added me to their SIR in the past several weeks.  I'm not used to posting the names of people who subscribe here, because often they either introduce themselves and get involved in the comments section, or they drift away when they realize that I don't post much about fabric quilting.  But I would like to welcome these new subs and say that I believe that the people who read and comment here are the cream of Xanga.  I very much hope you will find this to be a place where you feel welcome to express your views. 

  • 10:14 am
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