Striped skunk (Mephitis mephitis) spraying, USA
Plagiarism Today, which is run by a non-lawyer journalist named Jonathan Bailey, describes itself as “a site targeted at Webmasters and copyright holders regarding the issue of plagiarism online. Though it deals with many legal issues, in particular the DMCA and copyright law, it is not a legal blog and is, instead, a blog regarding a societal ill the effects may never be fully understood or comprehended. The goals of this site are as follow [sic]:
- To increase awareness, both among copyright holders and the media, regarding the prevalence of plagiarism on the Web,
- To inform copyright holders of their rights on line and encourage them to protect those rights in a responsible manner,
- To aid Webmasters and others who wish to reuse other works in doing so without fear of being dubbed a plagiarist,
- To create a community where copyright holders can work together and support one another in dealing with this issue,
- To give tools to copyright holders that enable them to more efficiently and more easily protect their rights,
- To reduce the overall rate of plagiarism by shining a very bright light on what previously has been the Web’s very dark secret,
- To bring about legal reforms that benefit all copyright holders, not just those with deep pockets, and create a fair balance between the rights of ownership for the copyright holder and society’s need to have a free and open culture.”
Here’s what he said back in 2007 about posting private emails on a public blog without the email writer’s permission:
“Alright, when you’re dealing with email that is being posted to the Web, there are two issues that come up. Copyright and privacy.
“There is little doubt that you have copyright protection over your emails. Since it is a creative work and it is fixated into a tangible medium of expression, you hold the copyright interest in anything you send via email.
“However, by sending it via email, you offer a certain implied license for the other person to use that material. That implied license extends to any copying that would be a foreseeable and natural outcome of you sending the email.
“For example, you can’t send someone an email and then complain that they copied the email by pulling it down from their server or copying it when they reply to you.
“However, most seem to agree that the above implied license does not extend to posting it on the Web. By sending you an email, I have no reason to assume that it is going to be posted on your site as it is not a natural consequence. Therefore, most likely, the implied license will not cover that.
“There hasn’t been a case to test this that I know of, but I have not read a lawyer’s opinion that said otherwise. Besides, posting an email on a site is not a direct consequence of sending an email, it is an action taken by the recipient without the permission of the author.
“As always, this type of argument will be held up to a fair use test and anyone seeking to use email correspondence on their blog can mitigate this by quoting only what is necessary, making sure that the use is transformative, meaning that another work is created from it, and using it for commentary or criticism purposes.
“Those issues have to be taken case-by-case.
“The privacy issue is much more complex and, unfortunately, can’t be answered here. It will depend on five things.
“1. The laws of the state(s) involved.
“2. What was in the email.
“3. What information was posted.
“4. Whether or not the person who sent the email is a public figure.
“5. Whether the judge likes you.
“The one thing that is critical here is that a person who thrusts him or herself into the public spotlight, for example, by running a site or introducing themselves into a major controversy, has fewer privacy protections than a regular citizen.
“This isn’t to say it wouldn’t be a privacy violation to pst something like this from a public figure, it would just be a harder privacy case to make. The real issue is what is in the email and what is posted. If it’s a rave review for a restaurant that is much different than posting my secret crush on Joan Jett (whoops).
“The bottom line is, whether it is an invasion of privacy is very much a moving target but it is a very dangerous game to play.
“There is one further side issue, defamation. If you quote someone from an email but only select certain portions and change the meaning of what is said, that can be considered defamation. Also, even if you quote someone entirely, if you don’t put the quote into context and it besmirches their reputation, that can also be considered defamation.
“All in all, I tell most who ask me to never post email correspondence on their site, it is too risky in too many ways. If someone does it to you, there are many potential avenues of attack and several ways it is actionable in court.
“Still, if you’re worried about email privacy, but a disclaimer in your footer indicating that this email is considered private and is not for republication. It really isn’t necessary for the most part, but is never a bad idea.
“Speaking of which, I probably need to change mine…
“Hope that this helps. If you have any further details you want to provide, I’ll gladly give a more detailed analysis.
“Jonathan Bailey – plagiarismtoday.com”
Now, as for me, I am a lawyer and here’s what I tell my clients and anyone else who will listen:
Don’t ever put anything in an email that you don’t want to read in the newspaper, a blog, or have a lawyer read back to you in front of a jury in a court of law.
Because it’s not against the law to quote people; and, emails are not only evidence, but the very first thing lawyers ask for when they’re conducting legal discovery. And while theoretically you may be able to sue, litigation is expensive, and the outcome is risky and uncertain. So, if you don’t want something quoted back at you, pick up the goddamn phone and yell at the person, instead of ventilating in writing. Geez, how many times do we lawyers have to tell you people, don’t put anything in writing! Shredders can do only so much, and sometimes not enough.