Forwarding e-mail is so easy that it must be legal, right? Not everyone thinks so.

Ned Snow at the University of Arkansas recently wrote A Copyright Conundrum: Protecting Email Privacy that argues that forwarding violates the sender’s copyright rights, so it’s not. The article is quite clever and is (as best I can tell, not being a legal historian) well researched, even if you agree with me that its conclusions are a bunch of codswallop.

Forwarding e-mail without permission is generally considered quite rude, and (I hope like most e-mail users) I generally don’t unless there is a reasonable basis for doing so, such as someone asking me to solve a problem that can only be solved by someone else. I also think that just about everyone agrees that a message does not fall into the public domain merely due to being sent by e-mail, and some kinds of use, such as collecting people’s mail into a book, should require permission. But not everything that’s rude is or should be illegal, and I don’t think it would be a good use of police or judges’ time to teach people manners.

Snow’s argument, greatly compressed from his 74 page article, is that there is a common law copyright based in privacy rights, separate from the statutory copyright based on utilitarian language in the Constitution, and that common law copyright prevents e-mail forwarding.

He states, I believe correctly, that it is settled law that the copyright in a paper letter belongs to the sender, even though the physical letter belongs to the recipient. This means that if you send me a letter, I can show it to people, and I can give the physical letter to someone else without restriction, but making copies is restricted by copyright. Historically, common law copyright gave very strong protection to authors of unpublished works, with almost no leeway for fair use. He cites some quaint cases from the 1800s where men’s wives were denied copies of letters sent to their husbands’ mistresses, and a few more recent cases such as the one about a book collecting J. D. Salinger’s letters in 1987. He then says that the same rules apply to e-mail, and you can’t make copies.

He goes on at some length describing what you can and can’t do with e-mail you get, e.g., it’s OK to give someone the disk on which your mail is stored, but probably not OK to give them the printout you made of a message in order to read it, along with some overwrought analysis of the meaning of recipients on the To: line (who get the original so it’s not published) vs. on the Cc: line (who get copies so it is.)

I see two glaring holes in his argument, one factual and one legal. In the factual one, he makes the common naive mistake of assuming that all e-mail systems work the way his does, but the reality is that there is a vast amount of copying involved in any e-mail delivery, with the details varying greatly from one system to another. In his model, there’s a copy of a message delivered to each recipient, stored on a disk somewhere, and that copy is the one that the law protects. That both ignores all the copies made in the delivery process, and it ignores scenarios that he hadn’t considered. For example, if you send mail to three people in the same organization, e.g., [email protected], [email protected], and [email protected], one delivery strategy is to store a single copy of the message, with entries in each recipient’s inbox index all pointing to that same copy. Who does the single copy belong to? Or, I routinely make backups of the data on the server where my e-mail and those of several friends and relatives for whom I handle mail are located. What is the status of those backups? It is absurd to argue that an ancient legal theory tells us how we can and can’t build our e-mail software.

The other hole is that he argues that statutory copyright doesn’t preempt common law copyright, even though the 1976 copyright act says that it does. His claim is that the act preempts “equivalent” rights, but the common law right is not equivalent to the statutory right because the former protects privacy and the latter is utilitarian. Given how easily the Supreme Court disposed of a somewhat similar non-utilitarian argument in Eric Eldred’s challenge to copyright term extension (a case Snow does not cite), with the Court saying they weren’t going to second guess the Congress’ interpretation of the Copyright clause, it is hard for me to see that theory getting any traction.

Nonetheless, the article is interesting, the references are certainly different from the ones you usually see in copyright articles, and it’s worth a read.