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Forward This at Your Own Risk

By way of the Fortune magazine blog The Browser comes word of a forthcoming law review article that posits the argument that forwarding an e-mail is a violation of copyright law. In the article, A Copyright Conundrum: Protecting Email Privacy, Ned Snow, assistant professor at the University of Arkansas School of Law, finds a 250-year-old common law tradition granting copyright protection to authors of personal correspondence. While congressional enactment in 1976 of the Copyright Act arguably changed all this, Snow concludes that constitutional limits on the reach of copyright legislation mean that this protection of personal correspondence remains very much alive -- and encompasses e-mail. From the abstract:

"The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright's protection of privacy. Email forwarding must yield to privacy protection."

This is as it should be, Snow argues in the article, which will be published in a forthcoming issue of the Kansas Law Review. "Any seemingly excessive litigation over email will in the end be productive, ensuring senders' privacy," he writes. "For email to be as thoughtful, clear, and creative as possible, privacy of expression must be recognized."

I hereby seek certification as plaintiffs counsel to a class of all who've ever had their e-mail forwarded.

Posted by Robert J. Ambrogi on May 3, 2007 at 05:03 PM | Permalink | Comments (1)


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