On Fri, May 04, 2001 at 07:26:04PM -0400, Brian Ristuccia wrote: > that gave him the letters. One can hardly argue that a latter sent to a > public mailing list is unpublished. >
Actually, that isn't true. To quote from 17 USC 101:
<quote>
"Publication" is the distribution of copies or phonorecords of a work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending. The offering to distribute copies or phonorecords
to a group of persons for purposes of further distribution, public
performance, or public display, constitutes publication. A public
performance or display of a work does not of itself constitute
publication.
To perform or display a work "publicly" means-
(1) to perform or display it at a place open to the public or at any
place where a substantial number of persons outside of a normal circle
of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of
the work to a place specified by clause (1) or to the public, by means
of any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or
in separate places and at the same time or at different times.
</quote>
Note that transfer is required, and public preformance does not
qualify. Also note that the legislative history makes clear that
broadcast does not qualify as publication.
I would disagree with it, but I think a serious case could be made
that emails send to mailing lists are unpublished, and merely
publically preformed. Unfortunately, I haven't been able to find any
court cases dealing with email.
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