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You Own Your Own Words...
Copyright (c) 1992 Jon Lebkowsky
<[email protected]>

      This article originally appeared in Volume 2 Number 3
      of Matrix News, the monthly paper newsletter of
      Matrix Information and Directory Services, Inc. (MIDS).
      It is copyright by its author.  For further information,
      contact the author or MIDS:
            Matrix News
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The Whole Earth 'Lectronic Link (WELL) is a conferencing system
based in Sausalito, California which serves a diverse group of users who
pay a monthly subscription fee plus an hourly rate to participate in
conferences on a wide range of subjects. Conference subjects include
technology, literature, travel, religion and mysticism, music, art, and
sexuality. The evolution of online personal and professional relationships
for users of the system is such that they often refer to it as a community,
and sometimes hold ad hoc "public meetings" within conferences wherein
issues of concern are discussed and debated. One such debate concerns
the issue of intellectual property, referred to by the acronym YOYOW
("You Own Your Own Words"), a phrase used in a disclaimer
prominently displayed at login:

      You own your own words. This means that you are
      responsible for the words that you post on the WELL and
      that reproduction of those words without your permission
      in any medium outside of the WELL's conferencing
      system may be challenged by you, the author.

This disclaimer was authored by Stewart Brand, a founder of the WELL,
who now says "I wish I had written you *are responsible* for your own
words." Brand feels that the word "own" is taken far too seriously by
some of the WELL's subscribers. It does have a different connotation
than "responsible," implying possession and control. [Brand 1992]

The WELL has fielded several discussions and flames on the topic of
intellectual property in an electronic forum. WELL policy on "word
ownership" is unclear, despite the login message, because in a community
environment a directive from management needs the support of user
consensus to be effective. In the politically diverse WELL community.
which seems to have polarized over the issue, consensus is hard to reach.

In March 1991 L. Brett Glass, a WELL user, complained that his words
had been "ported to another forum" without his prior consent. The
forum in question, the "WELL Screenzine Digest" (usually called "Zine"),
is a conference which combines material gleaned from the 180+ public
conferences on the system with new comments. When a conferee's words
are quoted in this digest, (s)he is mailed notification, including a note on
how to get the quote deleted if its reproduction is not okay. Glass was
concerned that his words had been quoted in Zine though permission for
the quote was not solicited in advance. "No one has any right to
reproduce material on which I own copyright...this is not only technically
illegal but fundamentally unethical." [Glass 1991]

This contention raises questions of concern to users of various
telecommunications systems on the Internet and elsewhere:

      1)    Are posts to a conference of this kind, or to bulletin board
            systems or other systems for electronic discourse, covered
            by current copyright law? Many of the participants in this
            particular discussion took it for granted that any written
            communication is automatically granted copyright
            protection. 

      2)    If such communications are not protected by copyright,
            should they be?

      4)    How binding is the WELL's login message? What remedy
            does it imply (it doesn't imply that appropriation of words
            without permission is actionable, but that it may be
            "challenged," whatever that might mean).

Ethically speaking, if you have signed on to the WELL and are cognizant
of the attitude of at least some of its users, reproduction of conferences
electronically or on paper would be "politically incorrect" whatever the
legalities might be. However the applicability of copyright law to the
ongoing conversation in conferences is at least questionable.

Copyright was created not so much to protect individuals from having
their words or thoughts ripped off as to enhance and encourage creative
expression by ensuring *authors* ownership of their *works*. The
question in the case of a conferencing system like the WELL is whether
the more casual expressions therein qualify as "authored works." As John
Quarterman suggests, the answer is probably that "...some do and some
don't. Some of my longer responses to questions are essays that turn into
articles, and I suspect others do the same." He refers to an article in
Matrix News that is "an extremely lightly edited conversational posting.
Did the half dozen minor changes I made (with the author's approval)
turn it into a literary work? Or was it one when it was originally posted
in a mailing list?" [Quarterman 1992]

Those works specifically protected, according to section 102a of current
copyright law, are

      1) literary works;
      2) musical works, including any accompanying words;
      3) dramatic works, including any accompanying music;
      4) pantomimes and choreographic works;
      5) pictorial, graphic, and sculptural works;
      6) motion pictures and other audiovisual works; and
      7) sound recordings.

The postings in an online conference, if taken as a form of conversation,
would not seem to fall into any of the above categories. The invocation
of copyright law as a basis for contesting the duplication of online
conversation would, in that case, be inappropriate. It is therefore critical
for us to question whether some template can be applied to determine
whether a written communication is a literary or "authored" work in line
with the intent of copyright law. "Copyright law came about in part out
of a sense of fairness to authors. But it also has developed under a
rationale, the one principally relied on in the United States today, that
society benefits from authors' efforts, that it is in our interest to provide
a system that encourages them, and that an appropriate system is one
that gives them property rights in the works they create." [Johnston 1982]

Given this interpretation, the question is whether various participants in
online discussion are creating "works," and, more important, whether
"property rights" with regard to this form of communication will provide
encouragement. In this context, we should consider that authors as early
as the 18th century tested their ideas in letters to other authors, friends,
and acquaintances. These letters, when collected and published, are
considered to be literary works in their own right. How do letters and
public posts within a computer network differ? [Quarterman 1992]

It is true that the "property" to which copyright law applies has become
less tangible with the evolution of information technologies. When you
copy a book, words on paper, you have copied a tangible, solid object
which can be reproduced only by, and within the constraints of,
mechanical means. Digital reproduction differs in important ways. A
digital copy is identical to a digital original; its widespread duplication
and proliferation over the networks is difficult to control. Digital data is
quickly and cheaply manipulated, so that it is sometimes difficult to
discern where the originator's rights end and the manipulator's begin.
Finally, "the ease with which users can copy, reformat, or transmit a
digitized work engenders the notion, whether right or wrong, that they
should not have to pay a royalty every time they transfer it from one
medium to another or share it with another user." [Wright 1989] Though
changes to copyright law are inevitable in a digital context, its intent, the
protection of "authored works," will likely remain the same.

The WELL's login message may be seen as a contract among users,
though it is not clear what legal remedy a user might seek if his words
were ported to "another medium outside the WELL." In Brett Glass's
case, words were ported to another medium *within* the WELL, and the
issue was, in this author's opinion, more of ethics than law. Even
copyright law allows, in its Fair Use limitation, the excerpting or quoting
of an author's works (though the Berne convention protects, among
other author's rights, the right to approve the context of a quote).

Copyright law clearly has limitations; it is not intended to protect any
and every expression. But where legal code does not specifically apply,
moral law still has jurisdiction. In exploring this issue, and in considering
legal and ethical concerns in the context of the Matrix, I hear a phrase
from an old Bob Dylan song: "...to live outside the law, you must be
honest." This is more to the point: in a system like the WELL, and
throughout the Matrix, given the lack of legal precedent and the sense of
benign anarchy, can we be "honest?" Can we be conscientious enough to
resolve differences before they become issues of law?

References

Brand 1992. Brand, Stewart, EFF conference on the WELL, topic 291,
response #1, 13 January 1992; also personal communications.

Glass 1991. Glass, Brett, EFF conference on the WELL, topic 156, 19
March 1991.

Johnston 1982. Johnston, Donald F., _Copyright Handbook_, pp. 226-
27. R.R. Bowker Company, New York, NY 1982.

Quarterman 1992. Quarterman, John S., personal communication, 13
March 1992.

Wright 1989. Wright, Benjamin, J. D., "Computer Mediated
Communication and the Law," Appendix B to Quarterman, John, _The
Matrix: Computer Networks and Conferencing Systems Worldwide_, pp.
646-647. Digital Press, Bedford, MA 1989.

For information on the WELL, call 415-332-4335 (weekdays 9-5 PST). 
To register online, call 415-332-6106 (2400 baud). The WELL is
accessible through the Internet ([email protected]) and CPN (Host: WELL).