Legal Question in Technology Law in Pennsylvania

emails

Who do emails belong to?..the sender or the receiver?...are they able to be forwarded to others or posted on the web indiscrimately?


Asked on 4/07/07, 1:08 pm

2 Answers from Attorneys

Daniel Cevallos Cevallos & Wong, LLP

Re: emails

e-mails are no more special than anything else, like a note passed in class. You don't own your own e-mail, and you know that people can forward your e-mail to a hundred people. danny@lawofdanny.com.

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Answered on 4/07/07, 1:56 pm
Gerry Elman Elman Technology Law, P.C.

Re: emails

Back in the days before email, the question broke into two parts. First, who has the right of possession of the paper-and-ink of the letter, and who has the right to control whether the contents are reproduced. The answer to the first question was "the recipient." The answer to the second question was "the author."

Under U.S. copyright law, as soon as a work of authorship is "fixed in a tangible medium of expression," it is protected by copyright. It is protected regardless of whether the author puts a copyright notice on the work and regardless of whether the copyright is registered. (Later, if the author wants to ENFORCE the copyright in court, s/he would have to register the copyright with the government.)

When you receive an email, you are receiving an authorized copy of the author's work. Under U.S. copyright law, the author automatically owns the copyright and thus the law gives the author the power to restrict the recipient's making additional copies of the work, as would occur if the author "forwards" the email to others.

Thus, a recipient of an email would automatically be entitled to display the email on his/her computer and probably to print out a tangible embodiment of it. I don't know of any case where this has been decided by a court, but I would think that the recipient would be entitled to show such a single printout to anyone s/he cares to, by analogy to the situation of a letter on paper.

However, without permission from the copyright owner, the recipient doesn't automatically have permission to make further copies of the email, as would occur if it were to be forwarded to someone else. In theory, the author could thereafter formally register the copyright for the contents of the letter and thereafter enforce that copyright in court.

Unless the email contained or was accompanied by an express prohibition against copying, I suspect that a court would be unlikely to award money damages in favor of the "innocent infringer" but it would probably issue an injunction against the copying. As a practical matter, though, this would often amount to closing the barn door after the cow's ran away.

A further point would be the recipient/forwarder's defense that s/he believed s/he had implicit permission from the author to forward the email. The argument would be, in effect, that since author chose to send the message by email rather than on paper, and because email technology includes a built-in "forward" function, the author's complaint to a court that the recipient had actually USED the "forward" function, in a foreseeable and conventional manner, should fall on deaf ears. That is, a court would probably conclude that there is a "presumption" that the author of an email implicitly gave permission under the author's copyright to forward copies to others, unless the author states that such permission is being withheld.

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Answered on 4/07/07, 4:34 pm


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