Dear Eric,
 
        As discussions have continued on the subject of banners,
it has become apparent that there are two different types of
digests that can exist.
 
         One is the type that Kevin was referring to (since I've
been participating with him in his list launching) in which the
messages to the list will be written by individuals who have a
copyright to their individual notes (without any requirement for
a copyright notice).    It is a listserv that is not being
planned in a corporate setting and one in which Kevin is not
planning to assert any personal copyright.
 
         It was not obvious to me (and presumably to others)
that your response was intended to apply to a corporate
setting  in which the *list-owner* *was* asserting a
copyright over *all* the individual messages included (and had a
legal right to do so) This is a completely different
set of circumstances which is only now becoming apparent as the
dialogue continues.
 
         In such a situation, it is, of course, *essential* that
a copyright of the *list-owner* *must* be included.   And, in
fact, such a copyright notice *over-rides* the presumed
copyright of the individual author (presuming that the
list-owner has the legal authority to do so)
 
       Now that you have explained the type of digest to which
you are referring, your response is comprehensible and appropriate.
Without this explanation, it was not.
 
The comment that:
 
> However, your work is better protected if it bears an explicit
> copyright
 
is irrelevant to a corporate list-owner who *must* post the
copyright notice in order to claim the copyright in the first
place over the individual messaages, and  in this instance, the
notice is *mandatory* .
 
By definition, the corporate
list-owner *must* post the copyright notice and thus will have
an opportunity to claim more and different damages.  Without the
copyright notice, not only could they not claim 'more and
different' damages, they could claim nothing at all since the
copyright could be considered to apply to the individual
authors.    And if these individual authors wished to enable
such protection, *they* would need to include the copyright
notice in their own messages (not have it added by the
list-owner)
 
> It is true that a notice strengthens the protection, by warning
> people, and by allowing one to get more and different damages, but
> it is not necessary.
 
        For a list-owner who is *not* planning to assert a
copyright over the individual messages (and cannot legally do
so), such a notice  is not necessary.
 
 If the individual author of a message wants to
take advantage of laws which might enable him or her to 'get
more and different damages' *the author* can include a copyright
notice on all his message.
 
The list-owner  of this type of list is *not obligated* to assist
them in this effort because he or she will have *no*
right to claim damages personally.    In fact, 'attempting'
to 'assist' may place an undue burden on the list-owner that
he may not wish to assume.
 
        So in summary, to return to Kevin's inquiry regarding the type of
list he is planning, the list-owner has *no responsibility*
and there is *no necessity* for him to place *any copyright
notice* on the digest at all.
 
         Regards,
 
Marianne
 
 
Date sent:                Mon, 19 Jun 1995 19:57:37 +0200
Send reply to:    LISTSERV list owners' forum <[log in to unmask]>
From:             Eric Thomas <[log in to unmask]>
Subject:               Re: Banners on mail messages
To:               Multiple recipients of list LSTOWN-L <[log in to unmask]>
 
You use the top banner to add a copyright statement when the copyright is
NOT to be  held by the poster. One  example is when you set up  a list to
repost  copyrighted  material  on  a   regular  basis  with  the  owner's
permission, for instance a newsletter. Anywhere where you'd want to add a
copyright manually -  you can now do this  automatically. Another example
is an internal corporate list where all subscribers are employees and are
using the list in the course  of their professional activities. I suppose
their employment contract is the place  where it is established that they
don't own the stuff they write in  the course of their job and under what
conditions exactly, but I also suppose the lawyers were concerned that it
might not be clear to *others* that  the work is owned by the company and
not the poster. All  in all, it doesn't matter. If  a customer feels that
they  can't buy  the  product  because of  a  tiny  missing feature  that
concerns their lawyers,  our answer is usually to  implement the feature,
and not to challenge their lawyers' competence.
 
  Eric
 
> If I receive  a big digest that comes  with one banner at the  top of the
> digest  (but  not at  the  top  of  each  individual message)  that  says
> "Copyright  1995  Foo  Inc.  Redistributed with  permission.  All  rights
> reserved worldwide"  and I have  a mail  program that happily  bursts the
> digest into  individual messages, I  can then view them  individually and
> not see the copyright. I can honestly forget about the copyright that was
> in the header 30 messages above the  one I am reading. I can then forward
> this to  a friend  for his private  amusement, and unless  I tell  him he
> won't have  a clue that this  is copyrighted material. He  may repost the
> material in good  faith. And who gets sued? Not  the friend, who couldn't
> know, and  probably not me,  at least not unless  I have enough  money to
> make the case interesting to  the lawyer. The Internet consulting company
> who did the repost and runs the list gets sued, because they did not take
> "reasonable steps" to  ensure it was clear to everyone  that the material
> was owned  by Foo Inc, and  because there is probably  a contract between
> them  and Foo  Inc.  saying under  what conditions  they  can repost  the
> material, and  a missing  comma in  page 21 that  after a  $100,000 legal
> battle will establish that they screwed up. That is the kind of situation
> you want to avoid.
>
> >      It is true that it can  be *useful* to include a copyright notice,
> >but as indicated in Templeton's article..." it is not necessary. "
>
> It is not  necessary to include a  copyright in order for the  work to be
> protected. However, your work is better protected if it bears an explicit
> copyright. This is  particularly important when the work  you are posting
> is not copyrighted by you, but by a third party, especially if it's a big
> corporation.  And  this   is  even  more  important  when   the  work  is
> confidential. If  you get a message  from me describing the  internals of
> some  cutting  edge  industrial  process,  you  may  assume  that  it  is
> copyrighted and ask  me whether it can  be reposted. Or you  may not know
> anything about the technology in question  and think it is a common bread
> toaster, and send  it to a friend who  works in that field to  ask him to
> explain what this all means. But if it starts with:
>
> *************************************************************************
> *************************** IBM CONFIDENTIAL ****************************
> *************************************************************************
>
>                         Copyright 1995 IBM Corp.
>
> I'll bet  you'll think twice before  forwarding it to someone  working at
> DEC who  knows that stuff  and can  explain it to  you. Of course  in the
> academic world we  hardly ever run into this kind  of situation. But some
> companies use LISTSERV  for internal product design  and development. The
> material they post to the list  is confidential and owned by the company.
> They want to make this clear with  each and every message, and we have to
> provide the necessary tools.
>
>   Eric
>
>
 
Marianne Brosseau
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