I recently answered a commonly-asked question about the legalities of forwarding email. Forwarding email is very easy to do; the user just clicks on a button and types in an address and the entire email is sent off into cyberspace to another reader. As any user of the Internet knows — this is, as often as not, contrary to what the writer of the email intended. It’s even more disturbing when an email sent to a private party is forwarded to a mailing list or posted (published) on a blog, where it gets sent on to hundreds of subscribers. That was the basis of the recent inquiry I received — What legal rights does the writer of a “private reply” email have, to not have that email forwarded and published to an entire mailing list? I’m republishing my reply here (removing all references identifying the person and the mailing list).

Forwarding and republishing email raises some interesting topics. Like many questions which come to me as a business and Internet lawyer, answering this involves considering both legal and ethical issues. (I will give some general information on the law and the ethical issues; obviously this is not within an attorney-client relationship, so you should not rely on this as specific legal advice in your situation.)

From the standpoint of ‘Netiquette‘ (Internet usage ethical issues) — it is absolutely considered a breach of ethics to take a private email and repost it (publish it) to a list or a blog (weblog) without obtaining the writer’s permission in advance.

The issues of law are not so direct and straightforward.

There is copyright protection under US law for everything someone writes or creates. Copyright protection under the law automatically attaches at the moment the writing becomes tangible in ‘fixed’ form (which is satisfied by writing an email on your computer, just as it would be if you had used a pen and a pad of paper). Just because someone receives a copyrighted work from a writer of that work via email, does not give them the legal right to do anything they want with that legal work. Reproducing the work without permission (ie, without a license) is a violation of US copyright law.

There are many arguments that apply these legal principles to mailing lists and blogs and which result in different theoretical professional opinions and outcomes. Let’s look at how the issues are typically analyzed.

First, there is the basic method of reproduction: the technical method that is being used in list distribution is “forwarding” — re-sending the email via a computer program to an entire list of subscribers. If mailing lists are based on forwarding, how do “publications” such as mailing lists operate legally under US copyright laws at all? Anyone can join the list and when someone sends an email, it is sent out without explict legal permission to however many hundreds or thousands of list members.

No court that I am aware of has decided whether forwarding email which you have not written yourself, constitutes copyright infringement. But, under the plain language of section 106 of the US Copyright Act (17 USC section 106), without any other considerations taken into account, it is clear that it would be:

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

This makes it very clear that the writer of an email controls the right of reproduction (publishing) which is mentioned in section 106 subsection (1).

However there is a doctrine in copyright law called “implied license.” Where two parties are operating as if they have an agreement of some sort, the law will “imply” that they have a certain type of agreement to match their actual conduct. (That means that if they get into a dispute, a court would look to the type of agreement it appears that they have, and imply that they have agreed to the ‘usual’ terms from that type of agreement — rather than finding no contract because no written document actually exists — because it looks like they in fact intended to have some type of agreement).

In the cyberlaw (Internet law) context, implied license theory is relied upon constantly by lawyers and legal educators. One of the most common implied license arguments is that browsing the web — the most basic Internet activity — is only legally possible by virtue of an implied license. Why? Because your computer makes a copy of every web page internally on your hard drive when you view it, and yet the author of the web page owns the copyright. Therefore, using a typical Internet browser like Internet Explorer or Firefox to view web pages results in unauthorized copies being made on thousands of people’s computers, merely by internal operation of their browser software. The implied license argument goes like this: the author of a web page obviously knows the web pages can be browsed; in fact, the author intends for them to be browsed — that’s why they are published on the Internet in an unsecured manner (ie, no password or security). Therefore, even though there is no written license in advance for those copies to be made on all those hard drives, there is an ‘implied license’ for users to access a published web page and make copies on their hard drives in the process of using their browser software.

Turning to the email forwarding issue — email is processed and accessed through a mail software application that makes forwarding automated and extremely easy in a one-step process (ie, taking a received email and ‘sending it on’ to another party). Many legal and IT professionals argue that everyone who uses email, accepts that this function exists, and is an inherent part of the way the email system architecture is designed — and that there is therefore an ‘implied license’ for anyone to forward email anywhere and everywhere they see fit.

In my professional opinion, I disagree that there is an implied license to forward email to another recipient, or to a blog, without permission. Web browsing and email are not analogous. In the case of web browsing, the author has already “published” the written work to the public at large by placing it on the Internet. It is reasonable to assume that the author of a web page means for it to be widely disseminated.

Where an email is sent to a private party, there is no reasonable assumption that the writer intended to “publish” that content to anyone and everyone. In most cases the email is meant to be private to the recipient and stay private. This is particularly true where the context of the email is that it was sent “off-list” between parties who are both on the same mailing list (or blog), and the subject of the email is related to a topic or exchange that has been public and subject to discussion on the entire mailing list (or blog) for everyone to read. In that specific context, it seems very clear that if a writer meant for an email to be published, the writer would simply send the email to the whole mailing list (or blog). Contrary to implying a license to forward such an email to a mailing list or blog, it is very clear that it is only legally reasonable that the opposite should be implied: a private email sent to a list member directly, instead of online, is very clearly meant *not to be published.* It should be implied (ie, the default should be) that there is never a legal right to do this.

Since an implied license is “implied,” it is not a written license with contract terms and it does not have a specific length or conditions about its termination. It can be revoked at any time by the writer. So, a writer can tell the recipient of an email that they have no legal right or permission to forward or republish any communications. This won’t undo the past; but it will make it very clear and set a legal precedent which will control the future.

Mailing list and blog owners can use certain techniques in an attempt to clarify copyright questions about forwarding and republication. One technique is to make each subscriber agree to a set of terms as a condition of joining, before they can participate. This is viewed as a contract between the list or blog owner and the subscriber, and the subscriber’s participation can be terminated if the rules are violated. Reposting a private email without permission is a common violation of such agreements. (Mailing list owners and bloggers can contact me for help in shaping agreements to control the behavior of their subscribers.)

Lastly, there are ethical and legal issues of privacy in forwarding email and publishing it to a mailing list or blog. Private email can contain information and contact details which the writer would never publish or disseminate. Many subscribers have an email address which they use only for mailing lists, or a user ID or ‘handle’ or nickname which they use on websites or blogs, which purposely discloses no information about them. The emails which they send privately as correspondence are sent from a different address, and frequently contain information identifying them and the means to contact them. Additionally, the content of their email may be private and not something they want publicly associated with their professional life and available on the Internet. Republishing a private email coming from an unpublished email address not only violates the writer’s expectation of control over content for copyright reasons, it also violates the writer’s expectation of privacy in any personal details which are entrusted to the recipient of the email.

Most states have their own specific laws about privacy and publicity. Generally, there is an expectation of privacy where someone has not deliberately put himself or herself into the public light. While many Internet users and commentators hold views that “people with nothing to hide don’t need privacy” and “there is no privacy on the Internet” and “information wants to be free,” the law is not there yet. Sending private email to a party gives the writer a reasonable expectation of privacy that it will not be republished to the world at large.

Those are the standard professional legal and ethical arguments. Even so, I can’t point to a single court decision setting precedent on the email forwarding issue. This is because, as far as I know, nobody has taken these issues to court to resolve them. Corrective action in the world of private email exchanges almost never merits the thousands of dollars involved in copyright and privacy lawsuits. Also, the most effective remedy on the Internet really is typically found in the ‘court of public opinion.’ Writers who have been wronged by the unauthorized publication of their private email to a mailing list or blog usually “out” the republisher as a violator of the well-known rules of Internet usage and copyright and privacy laws. The unauthorized republisher frequently suffers a loss of reputation among the list or blog participants from this and in many cases will be banned from further participation in the list or blog by an owner who actively polices subscriber conduct.