[vcf-midatlantic] Culpability and Provenance

Adam Michlin adam.michlin at vcfed.org
Fri Jan 15 03:30:09 UTC 2021

For context, I worked as a music copyist for some pretty major
composers and had to deal with all sorts of nightmare copyright

What is done privately is effectively a non-issue legally, but
copyright is exactly that, the right to copy. No one is going to sue
you for keeping someone's dissertation and that is, indeed, not a
copyright issue as no copy is being made. They could sue if you
decided to make a copy and somehow they become aware of it, but that
is basically a tree falls in the woods philosophical question. More
than often, though, they ignore the small fish.

This has led to confusion that people can legally make private copies
or copyrighted material. Yes, you almost definitely won't get in
trouble (don't copy that floppy... or at least don't tell anyone you
did!), but you aren't on legal grounds and ethically, well, that gets
even more complicated. Add to that certain clear as mud exceptions for
"backup" copies and you end up with a legal mess.

Any act of publishing that duplicates copyrighted material without
permission is a violation of copyright. Period. Whether or not it is
proveable in a court of law is an entirely different issue.

Here's some relevant information:


The First Sale Doctrine
The physical ownership of an item such as a book, painting, manuscript
or CD is not the same as owning the copyright to the work embodied in
that item.

Under the First Sale Doctrine (Section 109 of the Copyright Act),
ownership of a physical copy of a copyright-protected work permits
lending, reselling, disposing, etc., of the item. However, it does not
permit reproducing the material, publicly displaying or performing it,
or engaging in any of the acts reserved for the copyright holder. Why?
Because the transfer of the physical copy does not transfer the
copyright holder's rights to the work. Even including an attribution
on a copied work (for example, putting the author's name on it) does
not eliminate the need to obtain the copyright holder's consent. To
use copyrighted materials lawfully, you must secure permission from
the applicable copyright holders or a copyright licensing agent.
and further down
The way in which copyright protection is secured is frequently
misunderstood. Copyright is secured automatically when the work is
created and fixed in a tangible form, such as the first time it is
written or recorded. No other action is required to secure copyright
protection – neither publication, registration nor other action in the
Copyright Office (although registration is recommended).

The use of a copyright notice is no longer required under U.S. law,
although it is recommended. This requirement was eliminated when the
United States adhered to the Berne Convention effective March 1, 1989.
If a copyright holder wants to use a copyright notice, he or she may
do so freely without permission from or registration with the U.S.
Copyright Office. In fact, the use of a copyright notice is
recommended because it reminds the public that the work is protected
by copyright.

I am not a lawyer, this is not legal advice, but I've spent way too
much time talking to lawyers.


On Thu, Jan 14, 2021 at 9:55 PM Bill Degnan via vcf-midatlantic
<vcf-midatlantic at lists.vcfed.org> wrote:
> On Thu, Jan 14, 2021 at 6:10 PM Herb Johnson via vcf-midatlantic <
> vcf-midatlantic at lists.vcfed.org> wrote:
> > Well, while I have a lot I could post on these matters, I won't. I'm not
> > a lawyer and these are legal matters. The rest is discussion not advice.
> >
> > Certain content one might obtain from others accidentally on an
> > abandoned computer, is outright illegal to own and distribute. Delete it
> > - period. Other content is proprietary and still in distribution, thus
> > an actionable issue by the active producers of that content.
> >
> >
> >
> Herb,
> I respectfully contest your statement
> First of all, I believe (my belief) that one should try to leave a vintage
> computer as-is if possible, to preserve it's providence.  Unless the owner
> specifically says to delete everything I don't make a point to do so.
> Content authored by a person is owned by that person, i.e.  "copyright ".
> True, copyright is retained even after sale or abandonment of the vessel
> that stored that content (notebook, computer, tape recorder, etc.), but
> it's not a blanket thing. One who obtains a computer legally will not be
> guilty of a copyright violation solely by failing to delete the content,
> nor is it a copyright violation for using the content privately.  It's not
> illegal to retain the content that came with an abandoned computer per se,
> and there is no law that requires the deletion of such materials, even if
> ethically it may be the right thing to do.  Private letters, resumes,
> letters to the editor, transcripts, poems, computer programs, thesis...they
> all have different copyright standards so it depends what materials
> we're talking about.  It also depends on the type of legal entity who
> formally owned computer (company computer, individual's home computer,
> public computer from a library, etc.).
> For example, let's say a person wrote their doctoral thesis and stored it
> on the hard drive pf an old computer, and years later that the
> person donated the computer as-is to Goodwill.  If I was to extract that
> file somehow and publish it, no violation of copyright law would occur as
> long as the thesis had been published exactly as it appeared on the
> computer and was therefore already public.  Unless it was a
> privately-published journal, and so on.  If an earlier, unfinished revision
> of the final thesis was also found on the computer, that's a
> different story and it's easier to prove copyright violation perhaps.  In
> short, once the information has been made publicly available, and a few
> other caveats, it's "less protected", so the rule generally-speaking is
> that it has to be otherwise unavailable content as well as originally
> authored.   Further, if one were to anonymize the content before publishing
> that would likely be ok, if the names and personal info was sanitized from
> the published version.
> Bill

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