>In recent months I've noticed more and more Usenet posts that contain
>some kind of copyright statement in the .sig, often accompanied by
>statements that Alta Vista, Deja News, etc., etc., etc. are specifically
>prohibited from archiving the post.  I've also seen .sigs that threaten
>absurdly high monetary penalties if the post is archived.
>
>I haven't seen anything like this on my own list, but I'm starting to
>wonder about how things like this can be reconciled with having list
>archives.
>
>Why do people object to having their posts archived?
>
 
First, although I won't be a lawyer for another 8 months or so, I've run
across this issue many times, including on CYBERIA-L, the list I help
manage (one of the only mailing lists I've ever seen cited in law review
articles and even cited in a few court cases). Its subscribers include
many of the attorneys and litigants in the Communications Decency Act.
Many of the participants on that list are practicing attorneys, and many
are law professors, and all of them are quite concerned not so much about
copyrighting their postings, but about their posts themselves being
misused or construed against them.
 
A story: A few years ago, my Torts professor told us at the beginning of
our semester that we should be free to speak our mind, no matter how off
the wall -- nothing said in the classroom would be used against us at our
Senate confirmation hearings for the Supreme Court. :)  Humor aside, the
point is clear: there might be an adverse effect on free-wheeling debate
if you knew that EVERYTHING you were discussing in your field of study
was being recorded, logged, and made keyword searchable.
 
>Is there something inherently objectionable about commercial archiving
>services?
 
A word about copyright. In the US, the moment you put pen to paper (or
character to screen) copyright immediately attaches to that document (the
law says: "an original work of authorship fixed in a tangible medium of
expression...") and it extends through the life of the author plus 50
years. If somebody posts to a mailing list, it doesn't necessarily mean
they've given up copyright on it. I don't recall any case law on this,
but I would venture a guess that when it comes to archives of a list on
the listserver, that the poster could be assumed to have given an implied
license to the list owner to redistribute that material. Additionally, I
would imagine that since a reasonable person might assume the list is
being saved somewhere (for Digest purposes, etc) and could be construed
as giving license to that.
 
However, it might not be readily assumed that the postings are being
stored someplace wholly unrelated to the list or it's community of
members. Somebody might have real objections to having their creations
collected for somebody elses commercial gain. Let's take a hypothetical:
You made it a habit of posting hilarious jokes of your own creation to
the corkboard in the office lunchroom. Every evening, the head custodian
of the building came through your office, read the jokes, made a copy and
saved them in a folder. Then let's suppose he quit his custodial job and
decided to create an encyclopedia of humor for comedians to use, and he
uses your years worth of jokes in his database -- with proper attribution
to you, of course. The encyclopedia is wildly popular and makes the
custodian a few million dollars.  Not worrying about the merits of a
lawsuit, do you have a gut reaction to this? Does he owe you an money?
What if the jokes were all about your mother-in-law and now there's hell
to pay at home? You never intended those jokes to be available to a
community other than those people in your office.
 
>
>Are listowners reponsible if LISTSERV saves posts contaning "no archive"
>statements in the notebook files?
>
 
It would probably be extremely prudent to warn people in your "Welcome"
letter that notwithstanding any requests in people's .sigs, EVERYTHING is
being archived locally, so if they don't want it stored they'd better not
post it there. (It might be nice if you also stated something in the
letter like: this list is for exploration and debate of ideas about
<insert topic> and all postings should be considered as being in that
spirit. Points of view expressed or counterarguments raised should never
be construed as necessarily being the views of those partcipating in the
discussions... etc.)
 
>I also note that a commercial service called Pangaea Reference Systems is
>seeking to provide a free mailing list archive.  I got a note from them
>several months ago asking if it was okay to subscribe to my list, and I'm
>sure a lot of other listowners did too (it was mentioned briefly on
>LSTOWN-L).  I just checked their web site, and so far they have obtained
>permission to archive a mere 84 mailing lists, suggesting that most
>listowners declined to give permission.  I'm wondering if this was due to
>copyright considerations, or the ethical implications of allowing a
>commercial concern to profit from a mailing list (and from the labor of
>listowners).
 
The list I help manage is specifically not archived by us for all the
above reasons, and we actively discourage archiving in any organized
fashion. When I was brought on to help with the list, I found a
half-dozen archive subscriptions to the list. They never asked permission
and when they were brought to the attention of the owner, they were
unsubscribed. Some lists may not be worried about this, but the members
of our list were. Of course, they're all a bunch of high-tech lawyers. :)
 
Regards,
-Ray
 
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