In answer to Rowin's question: Copying the original expression in a website, email, blog, or whatever, is a prima facie act of infringement in most countries, certainly in any countries that are signatories to the Berne Convention and/or members of the WTO. However, in the United States, use of some portions of the expression for purposes of scholarship would likely constitute fair use. In countries such as the UK or Canada, it may constitute fair dealing if it falls within one of the specific educational or research exceptions, which will be highly fact dependent. Other countries will have their own user priveleges and exemptions. (There is decidedly NOT, BTW, a fair use exception in UK copyright law. You are probably thinking of fair dealing, which is something entirely different.) U.S. courts have generally rejected the idea that hypertext linking constitutes copyright infringement. A number of European courts have held to the contrary, as has at least one Korean court decision that I am aware of. Alternatively, in some cases, courts in EU member states have held that linking constitutes a violation of some other proprietary right, such as national database legislation. A number of recent U.S. decisions have held or assumed that public posting of material on the Internet confers an implied privelege for others to copy or link, unless that privelege is explicitly revoked. This is pretty much a foregone conclusion, given that you cannot view or read a web page, email, etc. without making at least RAM copies. I don't think this says much regarding the ethical question, however. Even if legally permissible, reproduction or linking may still be unethical. Contrariwise, I tend to think that legally impermissible reproduction or legal can sometimes be ethical, although that may be open to debate. As long as I am de-lurking, but without turning this into a treatise on international law, I will just mention that Eero's post regarding the Convention on Civil and Political Rights was, shall we say, maybe not the best guide to the meaning of the passages cited, their status in international law, and most especially their status under any given state's domestic law. Typically, the best advice regarding international law is the old television variety show warning, "Don't try this at home, kids!" *************************************** Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 USA *************************************** On 22 May 2004, Rowin Cross wrote:

I've been finding this a really interesting debate, so I hope that no = one minds me raising a point, and that it's not already been discussed = as part of the debate. I just wondered where copyright comes into this = - is part of the problem about what it's legitimate to record actually = about what it's legitimate to reproduce? I'm thinking from a UK = perspective and do appreciate that things will be (very) different in = other countries/contexts, but from that perspective I would think that = actually lifting material and putting it into another website would be = inappropriate, while just linking to it would be appropriate. I know = there's a 'fair use' for academic research clause in UK law, but how far = does that extend? Would a blog that's not on an ac.uk or .edu or = equivalent domain (like the one below) still 'count' as academic = research? (Yes, I'm sure that opens up lots of cans of worms!) Eero, = would you have felt differently about finding your words on another = website if there had just been a link to them instead? For what it's = worth, I agree entirely with Rod Carveth's comments (and please excuse = the not-intended-to-be-ironic cut & paste!): =20 And, if I as a citizen put my communication in a form that others can access, then I am giving up my right to say no to being researched. = If I don't want to be subject to research, then I don't participate in communication activities where my interactions can be accessed by the public. =20

But I don't necessarily agree that my act of posting gives other people = the right to reproduce what I post, only to refer to it and link to it = (outside a context that is clearly a research context). I'm not trying = to have a go at Derek, or anyone, I was just curious about what people = thought. =20 Hope you all have a lovely weekend, and that your weather's as wonderful = as it is here in Glasgow! =20 rowin =20 =20 =20 =20

________________________________

From: air-l-admin@aoir.org on behalf of Derek Lackaff Sent: Fri 21/05/2004 08:48 To: air-l@aoir.org Subject: Re: [Air-l] Google is watching !

ET wrote:

...

But the page isnt in this forum. My comments, and those of Danah and Jenny are being discussed in someone ELSES forum !!!

here is the link http://lackaff.net/archives/2004/5/15/ethics-and-online-identity/

Thus is a lurker exposed. I'm glad I could contribute in some way to the = discussion.

Thank you all for your insightful exploration of these ethical issues -- = as a relatively new researcher in a relatively new research area, I find = such debate very useful.

And, by the way, hello.

----- Derek Lackaff Masters candidate / Media Studies La Trobe University Bundoora, Australia

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Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 USA *************************************** Voice: 612-626-8726 Fax: 612-625-2011 bits: burkx006@umn.edu