> I hereby request the list management to remove > Anthony's email address from the subscriber list, > so as to not expose the IETF to liability. Too late ... my incredibly valuable service mark has already been distributed to the list many times in the headers of my messages. Clearly this dilutes the well-nigh awe-inspiring value of the mark and impacts the staggering commercial value of my business. > Hmm.. maybe that's not the right attitude, Anthony. I agree. But that's exactly what Habeas is trying to do. > It's pretty clear that there's a fair-use exemption > if you actually want to USE that domain name for anything. Fair use doesn't apply to trademarks and service marks. > Given that the song "Happy Birthday" was/is > copyrighted ( don't know when it expires, especially > after the whole Sonny Bono thing), I'd say that any haiku > that the Habeas crew comes up with qualifies. Not necessarily. The Habeas haiku comes closer to a business form or boilerplate text in a contract, which is not necessarily protected by copyright. Additionally, it's not clear that the appearance of the haiku in (normally invisible) message headers is an infringement, even if it is covered by copyright. Overally, there are just too many questions in this case, and the intent to pervert copyright law is patent. It's difficult to quarrel with the copyrightable nature of "Happy Birthday" and the infringing nature of unauthorized performances; but it is easy to quarrel with Habeas' bizarre distortion of IP law, and hopefully it would not hold up in court, as it sets a bad precedent and would significantly chill freedom of speech if it were upheld. > And although you may find the creative use of the law > distasteful, to state that their claims are 'invalid > prima facie', you need to be able to show that they > are in fact invalid. The haiku in question is trivial, like the title of a book. Additionally, it is not published in the normal course of e-mail routing. Users do not see it, and simple transmission of the work is not necessarily infringement (after all, the transmission of Web pages to your PC is not infringement, either, and even caching of pages seems to be okay). Just about every principle of and behind copyright protection is being ignored by Habeas. Odd that Habeas considers this okay, but if spammers went to the same lengths to distort the law to their own ends, people would form lynch mobs. I guess the law is great when it protects you, but bad when it protects someone else, eh? > Let's see... are the haiku original? Do they > meet the Bern Convention requirements for > copyrightability? Each message posted to this list is more subject to copyright than Habeas' haiku. In fact, the error messages I sent to domains that I reject in sendmail are more validly protected by copyright than this haiku, and domains that receive the messages and communicate them to end users are infringing my copyright. If that sounds absurd, keep in mind that it is no more absurd than the ideas promoted by Habeas. > Note that major companies have had *no* trouble > enforcing copyright/trademark on slogans as short > as "it's the real thing" or "you deserve a break today". Actually, they do. First of all, short phrases like this are not protected by copyright; copyrighted works must be non-trivial. And as trademarks, they are protected only in narrow contexts (those that might lead to confusion in the minds of consumers, or those that might dilute the value of the marks for their proprietors). > It may not be what the founding fathers had in > mind in 1790, and it may not match what you *wish* > it was, but it's how the *current* laws are held to read > as of today. No, they aren't. See above. Think about Xerox, Coke, and Aspirin, for example. > Barring a major judicial reversal (such as was > attempted in Eldred), we're all stuck with the > current laws as currently interpreted. Habeas has not been tested, and there are no highly relevant guiding precedents (I think). > IANAL, but it looks to me like the Habeas crew is > on fairly strong legal footing. On the contrary, they appear to be treading on extremely thin ice. But only a legal test will say for sure. > Also, they're not trying to stop spam directly. They're > providing two services: (a) a header tag that you can use > to filter your inbound mail for *NON*-spam, and (b) the > chance for any spammers to spend enough money on legal > fees to render it unprofitable. And what if I consider unnecessary headers in my incoming e-mail as spam? Then what? Can I sue or prosecute Habeas? If not, why not? After all, that application of law would be no less farfetched than Habeas' own attempted application of IP law.