[Fwd: Copyright and SPAM] by Cole

["Olga Francois" <ofrancois@xxxxxxxx>]

-------- Original Message --------
Subject: Potential Message re SPAM
Date: Fri, 2 May 2003 10:44:00 -0500
From: roland.cole@xxxxxxxxx
To: digital-copyright-digest-owner@xxxxxxxxxxxxxx
CC: jesposito@xxxxxxxxxxxx

Mr. Esposito wrote:

>Isn't this by definition Unsolicited, Commercial, Bulk, Email spam?
JE:  No, it's not, offensive though it may be.  Instant messaging is,
by definition, not email.  If nothing is being sold, it is a stretch
to
call it commercial.  And to call it unsolicited is to obscure the fact
that members of these communities make themselves available for
unsolicited communications.  It may be that such communities will
become
"gated" in time, requiring proof of membership and insisting that only
certain kinds of communications are permissible (e.g., no legal
warnings, no pornography, etc.).  An adjuct to this is that such gated
communities would be in a good position to negotiate with copyright
holders for community-wide content licenses, much as university
libraries do now for academic research data.  This would reduce the
cost
of copyrighted material by lowering the cost of sales (because a
vendor
gets potentially millions of users with one sales agreement).

Joseph J. Esposito

RJC: I appreciate the reasonableness of Mr. Esposito's response, and
his willingness to think creatively about the problem.

I would make the following points

1. IM vs EM Yes, IM is not exactly EM - but it has many of the same
characteristics (load on servers, intrusive to users, etc.)  So, yes you
"got me" on my semi-facetious question, but substantively I think many
of the issues are the same.

2. The "Agreed to Accept Point" I do NOT agree that an IM user has
"opted in" for any and all communication. I believe in the concept of
reasonable expectation, and I think this sort of message is outside that
bounds.

3. Definition of Commercial  I have the opposite problem to Mr.
Esposito's. If it is a commercial concern talking about property it
owns, I find it a stretch to call it anything but commercial
"Commercial," to me at least, is NOT limited to what first-year law
students would consider an offer to sell. 

4. Bulk - I find my biggest objection to spam that is not in itself
fraudulent or distasteful (and I am pretty tolerant of tastes other than
my own) is in fact its "bulk" nature. People willing to use the
resources of thousands or millions of those uninterested to find those
interested (that is, untargeted advertising, solicitation, etc.) are
doing something I wish they would not. To me, this objection applies
even when the message may be laudable in some respects - telling
thousands of people to stop taking drugs because some of them are in
fact taking drugs is neither effective nor appropriate, IMHO.

All of that said, Mr. Esposito has some interesting suggestions for
going forward. Indeed, our participation in a moderated discussion list
seems to me to embody some of the things I hear him suggesting. But I
also think that any effective attempts to control "spam" have to have
some consensus on how to define it (if only to allow each person to have
his or her own definition), and Mr. Esposito and I, just to take two
presumably reasonable and thoughtful people, are examples of how much
"reasonable" disagreement there can be.



Roland J. Cole*
Barnes & Thornburg
11 South Meridan Street
INDIANAPOLIS IN 46204-3535
317-231-7799; fax 317-231-7433
*Actively Licensed in IN,  MI and MO
roland.cole@xxxxxxxxx; http://www.btlaw.com
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