A University of Arkansas law professor could have struck a mighty blow against information overload by suggesting that the U.S. Federal Copyright Act does not protect someone from copying and distributing another person's private expression - which means that forwarding e-mail without permission of the sender may be against the law.
"Going back more than 250 years, the common law recognized that authors of personal correspondence hold absolute property rights in their private expression," said Ned Snow, assistant professor of law.
"Although the Copyright Act has been construed to preempt common law rights of expression and thereby deprive authors of privacy, there is no such preemption. Under the Constitution, private expression falls outside the scope of expression that is subject to federal regulation. The routine practice of e-mail forwarding violates principles of common-law copyright regardless of what the Federal Copyright Act says."
Snow argues that since forwarding an e-mail message is as simple as clicking a button, sharing an e-mail with a third party inhibits free expression because senders feel they cannot be candid..
He concludes that electronic communication is therefore subject to the same common-law principles as conventional mail, which is protected through what is known as the right of first publication, which gives authors exclusive control over whether and when a letter would be published to a third party.
Accordingly, because e-mail forwarding deprives the sender of privacy, it violates common-law copyright. However, if an author carbon-copies a third party, the author relinquishes this control and forfeits privacy.
Common-law privacy protection had been absolute until 1976, when Congress passed the Copyright Act, which defines U.S. law regarding intellectual property. The Copyright Act states that it preempts, or replaces, all other law that provides "equivalent" rights. However, the act does not protect privacy interests.
One of the purported rights that the act is supposed to preempt is that of first publication, which, as Snow emphasizes, is the key to protecting privacy interests under the common law.
The Copyright Act, then, seems to excuse unauthorized e-mail forwarding. But Snow maintains that the Copyright Act does not preempt common-law rights that protect privacy of expression, basing this argument on language set forth in the Copyright Clause of the U.S. Constitution.
Legal argument aside, any bets as to how long before the first test-case?