Lesson 7 - Copyright 6:

A Copyright Owner's Conduct May
Sometimes Create an "Implied License"
that Lets Others Copy

You post something to a discussion list. I quote your message in my response. Have I acted illegally?

Probably not, though your message is copyrighted, and I copied it. Your posting the message to a discussion list almost certainly gives others an "implied license" to quote it. When a copyright owner acts in such a way that *reasonable people would assume that he's allowing them to make copies*, the law interprets his conduct as creating an "implied license."

A familiar non-cyber example is a letter to the editor. If I send the letter to the newspaper that starts with "Dear Mr. Editor,"a reasonable person would assume that I'm allowing them to publish. This is so because this is a *customary practice*, and because almost everyone knows about this custom. So when the newspaper publishes the letter, they'll be protected by the implied license.

A few more examples:

Someone sends a personal message to one other person. Reasonable people would generally not assume that the author is allowing the recipient to forward the message to others. NO IMPLIED LICENSE.
A newspaper posts something on its advertising - supported Web page. Reasonable people probably wouldn't assume that it's allowing readers to forward it to news groups. PROBABLY NO IMPLIED LICENSE.
Someone sends a message to a discussion list. It's not clear whether reasonable people would assume that they're allowed to forward it to other lists. A lot might depend on the list's customs, and on whether the list is wide open or limited to only a few people.

It should be clear by now that this is a VERY mushy test (a lot of law is, for better or worse, that way). Fortunately, though, you as the copyright owner can make things less mushy: Implied licenses can always be EXPRESSLY REVOKED, just by saying so in a way that potential copiers will see.

If my letter to the newspaper starts with "Dear Editor: Don't publish this," then I'm not giving the newspaper any sort of license. Similarly, if my e-mail to a discussion group clearly says "Don't forward this to any other group," readers won't have an implied license to forward it. If I were the lawyer for a newspaper that didn't want its stories copied from its Web page, I'd tell them to put up a prominent notice about this.

One more important point: An implied license can only be granted by the COPYRIGHT OWNER. If I post someone else's software (or even someone else's newspaper article) to a bulletin board, this doesn't give anyone the implied license to do anything with it.

authors

Larry Lessig David Post Eugene Volokh

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Lesson 7 - Copyright 6:

A Copyright Owner's Conduct May *Sometimes* Create an "Implied License" that Lets Others Copy

A Copyright Owner's Conduct May
Sometimes Create an "Implied License"
that Lets Others Copy