Leave it to the newspapers to be a source. In today’s local paper is mention of a really interesting and excellent law review article: Ned Snow, A Copyright Conundrum: Protecting Email Privacy, 55 Kan. L. Rev. 101 (2007), which can be opened or downloaded here. The Abstract follows:
The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the “forward” button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of “fair use.” Accordingly, the routine practice of email forwarding would violate principles of common-law copyright.
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 The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding.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.
Would the courts find an expectation of privacy that society would recognize as reasonable in e-mail once sent? As the White House is about to find out, “e-mail is forever.” Copyright maybe; under traditional Fourth Amendment doctrine, no because, by sending an e-mail, like mailing a letter, once it is out there, it is fair game.
But, that is the point of the article: E-mail actually inhibits free and frank discussion because of fear of forwarding. What I hate are people that shoot off e-mails without thinking about them, or looking at the recipient (as they respond to an entire list serv with something confidential). Written letters give you time to think, reflect, and change your mind. An e-mail can go around the world in a matter of a second or two. A forwarded e-mail in minutes or hours, and you have no control.
Remember e-mail etiquitte:
23. Do not use email to discuss confidential information.
Sending an email is like sending a postcard. If you don’t want your email to be displayed on a bulletin board, don’t send it. Moreover, never make any libelous, sexist or racially discriminating comments in emails, even if they are meant to be a joke.
. . .
28. Don’t send or forward emails containing libelous, defamatory, offensive, racist or obscene remarks.
By sending or even just forwarding one libelous, or offensive remark in an email, you and your company can face court cases resulting in multi-million dollar penalties.
