Back to That Copyright Clause.

[heiditandy]

First, nothing I say here is legal advice. You might call it legal 
analysis, but I'm giving advice to no party. 

--- In HPFGU-Feedback at yahoogroups.com, "Tom Wall" <thomasmwall at y...> 
wrote:
> Hey all,
> 
> Well, I started thinking about this whole copyright
> discussion that we were having a few days ago, and about this
> clause that I remarked on back then, and about my
> response to what Debbie and Kelley said about it. It
> probably won't surprise most of you to hear that even
> after I wrote that response the other day, something about
> it just didn't sit right with me... I couldn't
> articulate exactly what that is at first, and I'm not
> entirely sure that I can right now, either. 

I'm not sure you can either, for the simple fact that copyright law 
in the US, which is where most of the mods of HPFGU, as well as 
Yahoo, are located, is never as simple as it looks. 

I am writing this post without consultation with any of the 
listmods, and I'm not speaking for the mods individually or as a 
collective, as I'm not one. 

But I was an elf, and I was one of the elf/mod team that created the 
Terms of Use for HPfGU. And I wrote the clause you've placed at 
issue here. 

First, a little personal note. You seem to imply in your posts that 
it may not have been an iniadvertent error that left the clause out 
of the June Revision, but it most certainly was. I was on leave from 
late May onward, basically until I left the Mod Squad in late July, 
due to the fact that I had a baby on June 2, and I never looked at 
the ToU before it was uploaded. I did, however, notice it was 
missing in the autumn, once I had semi-regular web access again, and 
suggested to the mods that they add it back in then; they did so not 
too terribly long thereafter (although it was at least two weeks, 
but that was over Thanksgiving, when I think a lot of people were 
traveling). 

Yes, clearly, someone should have noticed that in editing the excess 
verbage out of the ToU, that section was trimmed down much more than 
it should've been. And, believe it or not, I do think that anyone 
who joined between the June Revision and the December Revision did 
not have that section of the ToU apply to their posts made *during 
that time period*. However, that's only for people who joined during 
that time, and, again, only for posts made during that time period. 

Any posts that were already in the message database, the archival 
databases or the archives that the mods oversaw the creation of in 
case someone deleted the lists again, as was done in March, 2002, or 
incorporated into the FAQ, can remain there, as a matter of law, 
pursuant to the ToU in existence when those messages were created. 

The license regarding use of messages actually has existed since at 
least January 16, 2001, per the post at 
http://groups.yahoo.com/group/HPforGrownups/message/9338 which said:

<<In posting to this group, you grant the Moderators the right and
license to use the content of your messages in other contexts. At
this time, the Moderators intend to use this permission only for
purposes of archiving and creating topical FAQs for the group, but
reserve the right to use them for other purposes.>>

Obviously, the language changed slightly thereafter, but all posts 
after January 16, especially by anyone who was a member on January 
16, were made by those who knew or should have known that their 
posts might be used in the FAQ, as that post explicitly stated one 
purpose, and reserved the right to add additional purposes.  

Actually, let me rephrase that - the Welcome Message from January 13 
until the first revised bigfile was posted contained that language, 
per this post from John on January 13, 2001
(http://groups.yahoo.com/group/HPforGrownups/message/9141).

Tom alleged:


> If a member was banned in between 16-June and
> 05-December, then that member was banned according to
> the rules that were in effect at the *time,* not the
> rules that *used* to apply or the ones that *later*
> applied. 
> 
> This means that all of that material is still under her 
> own copyright, as she was only bound by the version of the HBfile
> that came out in June and cannot be expected to abide by rules 
that 
> went into effect after she was banned. 
> 
> I.e. None of Cindy's work has been ceded to HPfGU formally, which 
> means that she still has the rights to all of it.
> 
> Just wondering what y'all are thinking about this.

I know that, based on what I've said above, I am thinking, Tom, that 
you are incorrect in your assertion that all of that material is 
still under her own copyright, for the simple reason that the 
Bigfile was not, and was never intended to be Nunc Pro Tunc, and 
thus invalidate the copyright license that had existed for 
approximately 29 months by that date. 

I would also like to point out that for a long time, Cindy was a 
member of the Mod Squad and the Admin Team; she was on the Mods' 
List even after being removed as an Admin. It is possible that under 
the Work for Hire doctrine, she had a vested interest in the success 
of the list, and created posts specifically to ensure the contineud 
success of HPfGU. Thus, any posts made on any of the HPfGU lists, 
especially on the FAQ list, where she was the Mod/Admin Rep, were 
done pursuant to the Work for Hire doctrine. In a work for hire 
situation the creator of the work never has the copyright, and thus, 
Cindy would not own the copyright in anything she posted to any 
HpfGU list after she became a member of the Admin Team, and possibly 
while she was on the Mod Squad, and anything she posted on the FAQ 
list while she was on the Admin Team, and while she was the Mod 
Squad rep. 



> So, extrapolating from that, everyone who was
> *presently* a member of the list when the new rules
> went into effect on 16-June-2003 was, if I'm not
> mistaken, *inadvertently released* from the old rules
> when the new HBfile became the standard set of rules
> for HPforGrownUps.

There's actually no such thing as an inadvertent release from a 
license, at least not retroactively. Copyright licenses can only be 
created and/or modified via a writing, and a  click-wrap license or 
agreement that is conceptually similar to the one on HPfGU's lists 
has been deemed a sufficient writing (Hotmail Corp v Van Money Pie, 
Inc (1998) 47 U.S.P.Q. 2D (BNA) 1020, 1025 (N D Cal)). However, said 
license cannot be retroactively voided, which is what Tom is asking 
for, by dint of a subsequent change in the terms of the license.  


> 
> But then, we have a whole slew of people who joined
> in between 16-June and 05-December of 2003. So, all
> of *these* people, who were never constrained by the
> rules in the *old* HBfile at all, signed up under new
> rules which did *not* include that clause on releasing
> copyright to HPforGrownUps.

Correct. They simply gave a license to Yahoo, not to HPfGU. 

> So, in effect, whether or not the rule *used* to
> matter is sort of irrelevant now, isn't it?

Only for those who joined between 16 June and 5 December. 


> Old members were released from that rule once the new
> rules went into effect on 16-June. 

No, as I've said above, you can't retroactively nullify a granted 
license without specific language releaseing the licensor. I think 
we can all agree that such language has never been promulgated by 
HPfGU. 

> Which means that when the rule was returned to the
> HBfile on 05-December, we *still* should have been
> notified of it, because even if the rule *used* to be
> in effect, it is *still* a new addition to the hbfile, 
> since it *wasn't* in the hbfile for about six months.

Actually, I'd say that it is a "known or should have known" for 
anyone who (a) was a member of the lists on December 5, and (b) 
accesses the list via Webview, as the front page of the Yahoogroup 
has said, specifically, that the LIst Admin section was updated on 
December 5, 2003, which should induce any member to check it out and 
see what was updated. I also found a post from December 28 
announcing the revised Bigfile, so from that point forward, all list 
members who'd been members before December 5 but not before June 16 
(as well as those who'd been on since before June 16) knew or should 
have known to review the Bigfile to see what changes there were 
regarding their continued use of the HpfGU family of lists. 


> 


> Another - admittedly more stringent - take on the issue would
> be to suggest that once the new HBfile went into effect on 16-
June, 
> *all* members (and their posts dating back to the beginning) were 
> inadvertently released from this clause.

Even if they were, I think that HPfGU would have a very strong 
argument, pursuant to the Kelly v. Arriba case, that any usage of 
the posts on and to HPfGU for purposes of creating FAQs, 
administrative documents and/or preserving the integrity of the list 
would qualify as Fair Use. 

What is Fair Use?

Fair use prevents "rigid application of the copyright statute when, 
on occasion, it would stifle the very creativity which that law is 
designed to foster." Dr. Seuss Enters., L.P. v. Penguin Books USA, 
Inc., 109 F.3d 1394, 1399 (9th Cir. 1997) (internal quotation marks 
and citation omitted, per Kelly v Arriba). 

The four factors a court would look at in assessing Fair Use are: 
(1) the purpose and character of the use, including whether such use 
is of a commercial nature or is for nonprofit educational purposes; 
(2) the nature of the copyrighted work; (3) the amount and 
substantiality of the portion used in relation to the copyrighted 
work as a whole; and (4) the effect of the use upon the potential 
market for or value of the copyrighted work. 17 U.S.C. § 107.

Let's put aside the concept of a book containing HPfGU posts for the 
purpose of this post; the list admins haven't suggested such a thing 
in years. I think we can all agree that at least as far as the main 
list and the movie list go, as well as the Feedback FAQ list and the 
Mods' lists, the posts to HPfGU lists are for nonprofit educational 
purposes. It's possible that posts to OTC wouldn't be deemed 
educational, although some clearly are, but they are certainly not 
commercial in nature, at least as far as the lists themselves are 
concerned (and anyone who thinks Yahoo's ads make it commerical 
should get an ad-blocking program). 

The copyrighted works are, as a general rule, educational, 
informative or engaging in criticism and discource, so factor #2 
would tip towards a determination of Fair Use. 

If only sections of larger works were used in the compilation by 
others of FAQs and the like, then factor three would tip towards a 
fair use determination. 

And while HP-centric books are popular in the bookstores and 
libraries of the world, the actual value of sections of any given 
post by any given user is small, especially as said sections are 
only a small part of the whole work that is created. 

Accordingly, even if the license did not exist, using snippits of 
posts made to the list in the Fantastic Posts series would likely 
qualify as Fair Use. 

And per my discussion of Work For Hire above, I think that any FAQs 
and FP's written specifically to be hosted among HPfGU's FP 
collection would certainly be work for hire, as a work for hire 
copyright situation happens by operation of law when someone creates 
a work as part of his/her employment duties, even if those duties 
are performed on a volunteer basis. No written document is needed, 
but a written contract can exist where the writing is limited to 
emails wherein one person takes responsibility for writing things 
for the group. 

So that's an overview of Fair Use, Work for Hire and copyright 
licenses, which I hope make it clear where claims of copyright 
license and ownership lie. 

But before I dash off to finish a software license agrement, one 
last thing. Were Cindy or any other member to sue for copyright 
infringement, the COpyright Laws would protect the HpfGU mods from 
being forced to pay treble damages, unless the copyrightable works 
were registered with the copyright office within three months of 
publication. She would also be statutorily unable to collect any 
attorney's fees if there was to be a suit. 


Heidi, speaking for nobody but herself, and even then, only in an 
analytical posture, and without giving any legal advice