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Copyright issue with Carman papers?

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  • Brian Downey
    Hi friends, I know at least two members here will know something more about this thought posted on MHO today: From what I remember, the Carman papers were
    Message 1 of 10 , Feb 16, 2008
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      Hi friends,

      I know at least two members here will know something more about this
      thought posted on MHO today:

      "From what I remember, the Carman papers were donated to LoC by
      Carman's son, but without relinquishing rights to them, so they were
      not a 'gift' in the legal sense. Which means that any publication is
      subject to the residual property rights held by the family. To top
      that off the LoC has had no contact with the Carman family for years
      and has no clue what heirs may be around. So it's kinda like buying or
      selling a house that has no clear title."

      Richard Anderson (of Artillery Hell) mentions some "legal issues" in
      the same thread.

      (discussion here:
      http://www.militaryhistoryonline.com/forums/ViewPost.aspx?ForumID=12&ID=11176
      )
    • Joseph Pierro
      No, Carman s papers are now public domain. I m glad someone asked, however, because this is a good thing for everyone with an interest in the Civil War to
      Message 2 of 10 , Feb 16, 2008
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        No, Carman's papers are now public domain. I'm glad someone asked, however, because this is a good thing for everyone with an interest in the Civil War to know.

        According to current U.S. Copyright Law, the copyright on manuscript materials (letters, diaries, etc.) is the life of the author + 70 years.

        In the case of Ezra Carman, he died in 1908. Therefore, EVERYTHING in his collection in HIS handwriting passed into the public domain in 1978.

        Unless you have a Civil War veteran that lived passed 1938, there's no copyright restriction on any UNPUBLISHED documents you might find.

        Now for published works, ANYTHING published before 1923 is automatically in the public domain. AFTER 1923, copyright law becomes a bit too complex for me to go into right here.

        A very good chart on published AND unpublished material can be found at:
        http://www.copyright.cornell.edu/public_domain/

        Regards to all,

        --jake



        ----- Original Message ----
        From: Brian Downey <bdowney@...>
        To: TalkAntietam@yahoogroups.com
        Sent: Saturday, February 16, 2008 6:49:46 PM
        Subject: [TalkAntietam] Copyright issue with Carman papers?

        Hi friends,

        I know at least two members here will know something more about this
        thought posted on MHO today:

        "From what I remember, the Carman papers were donated to LoC by
        Carman's son, but without relinquishing rights to them, so they were
        not a 'gift' in the legal sense. Which means that any publication is
        subject to the residual property rights held by the family. To top
        that off the LoC has had no contact with the Carman family for years
        and has no clue what heirs may be around. So it's kinda like buying or
        selling a house that has no clear title."

        Richard Anderson (of Artillery Hell) mentions some "legal issues" in
        the same thread.

        (discussion here:
        http://www.military historyonline. com/forums/ ViewPost. aspx?ForumID= 12&ID=11176
        )





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      • Thomas Clemens
        Not only doI agree with Jake s point, but the manuscript and the letters were created mainly on government time with governement pay. That makes them
        Message 3 of 10 , Feb 16, 2008
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          Not only doI agree with Jake's point, but the manuscript and the letters were created mainly on government time with governement pay. That makes them government property. Nicethat his son "donated" them, but they were not really his to claim.

          Thomas G. Clemens D.A.
          Professor of History
          Hagerstown Community College


          >>> "Brian Downey" <bdowney@...> 02/16/08 6:49 PM >>>
          Hi friends,

          I know at least two members here will know something more about this
          thought posted on MHO today:

          "From what I remember, the Carman papers were donated to LoC by
          Carman's son, but without relinquishing rights to them, so they were
          not a 'gift' in the legal sense. Which means that any publication is
          subject to the residual property rights held by the family. To top
          that off the LoC has had no contact with the Carman family for years
          and has no clue what heirs may be around. So it's kinda like buying or
          selling a house that has no clear title."

          Richard Anderson (of Artillery Hell) mentions some "legal issues" in
          the same thread.

          (discussion here:
          http://www.militaryhistoryonline.com/forums/ViewPost.aspx?ForumID=12&ID=11176
          )
        • Joseph Pierro
          I made this point to Brian off-site, but it bears repeating here for the benefit of anyone who s considering publication. Physical possession of manuscripts
          Message 4 of 10 , Feb 16, 2008
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            I made this point to Brian off-site, but it bears repeating here for the benefit of anyone who's considering publication.

            Physical possession of manuscripts and the "publishing rights" to their content are two distinctly different things. Just because someone donates the papers to a public institution, for instance, does not mean that the content is in the public domain.

            The reverse, however, is equally true. Just because an institution owns a document DOES NOT mean that they necessarily have any authority over whether it can or cannot be published or quoted from.

            Most institutions require that you obtain permission to reprint anything in their holdings, but in most cases (at least as far as Civil War-era documents go) doing so is merely a courtesy on the part of the researcher.

            Many archives have a natural tendency to think they have control over everything in their collection, when in fact they have no more legal ownership of the CONTENT than anyone else does. All they own is the PHYSICAL PIECE of paper and the right to reproduce an EXACT IMAGE of that paper. But the words themselves? That's something entirely different.

            In my experience, most archivists (especially at private institutions, such as historical societies) have little working knowledge of copyright law, and their default response is to say "We own the rights to it" when in fact they really don't.

            I've known too many people who've been dissuaded from undertaking projects because they were concerned about legal restrictions that did not in fact exist.

            --jake


            ----- Original Message ----
            From: Thomas Clemens <clemenst@...>
            To: TalkAntietam@yahoogroups.com
            Sent: Saturday, February 16, 2008 11:20:29 PM
            Subject: Re: [TalkAntietam] Copyright issue with Carman papers?

            Not only doI agree with Jake's point, but the manuscript and the letters were created mainly on government time with governement pay. That makes them government property. Nicethat his son "donated" them, but they were not really his to claim.

            Thomas G. Clemens D.A.
            Professor of History
            Hagerstown Community College

            >>> "Brian Downey" <bdowney@aotw. org> 02/16/08 6:49 PM >>>
            Hi friends,

            I know at least two members here will know something more about this
            thought posted on MHO today:

            "From what I remember, the Carman papers were donated to LoC by
            Carman's son, but without relinquishing rights to them, so they were
            not a 'gift' in the legal sense. Which means that any publication is
            subject to the residual property rights held by the family. To top
            that off the LoC has had no contact with the Carman family for years
            and has no clue what heirs may be around. So it's kinda like buying or
            selling a house that has no clear title."

            Richard Anderson (of Artillery Hell) mentions some "legal issues" in
            the same thread.

            (discussion here:
            http://www.military historyonline. com/forums/ ViewPost. aspx?ForumID= 12&ID=11176
            )





            ____________________________________________________________________________________
            Never miss a thing. Make Yahoo your home page.
            http://www.yahoo.com/r/hs

            [Non-text portions of this message have been removed]
          • Stephen Recker
            Not that I am asking for legal advice, but how does this differ from publishing an image that is in a collection? Is that where the fact of it being an EXACT
            Message 5 of 10 , Feb 17, 2008
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              Not that I am asking for legal advice, but how does this differ from
              publishing an image that is in a collection? Is that where the fact of
              it being an EXACT IMAGE comes in. Thanks.

              Stephen

              On Saturday, February 16, 2008, at 11:59 PM, Joseph Pierro wrote:

              > I made this point to Brian off-site, but it bears repeating here for
              > the benefit of anyone who's considering publication.
              >
              > Physical possession of manuscripts and the "publishing rights" to
              > their content are two distinctly different things. Just because
              > someone donates the papers to a public institution, for instance, does
              > not mean that the content is in the public domain.
              >
              > The reverse, however, is equally true. Just because an institution
              > owns a document DOES NOT mean that they necessarily have any authority
              > over whether it can or cannot be published or quoted from.
              >
              > Most institutions require that you obtain permission to reprint
              > anything in their holdings, but in most cases (at least as far as
              > Civil War-era documents go) doing so is merely a courtesy on the part
              > of the researcher.
              >
              > Many archives have a natural tendency to think they have control over
              > everything in their collection, when in fact they have no more legal
              > ownership of the CONTENT than anyone else does. All they own is the
              > PHYSICAL PIECE of paper and the right to reproduce an EXACT IMAGE of
              > that paper. But the words themselves? That's something entirely
              > different.
              >
              > In my experience, most archivists (especially at private institutions,
              > such as historical societies) have little working knowledge of
              > copyright law, and their default response is to say "We own the rights
              > to it" when in fact they really don't.
              >
              > I've known too many people who've been dissuaded from undertaking
              > projects because they were concerned about legal restrictions that did
              > not in fact exist.
              >
              > --jake


              [Non-text portions of this message have been removed]
            • 128thpa@comcast.net
              This is great info and I appreciate it all. I have a question then. Several years ago when I started my research on the 128th Pa, I wanted a photo of Samuel
              Message 6 of 10 , Feb 17, 2008
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                This is great info and I appreciate it all. I have a question then. Several years ago when I started my research on the 128th Pa, I wanted a photo of Samuel Croasdale, their Colonel killed at Antietam. In all my research, I have only come across one photo (I have been in contact with relatives and they don't have any). This particular photo is published in a book of officers that was put together by Gen Meade's son and I was told that I would have to pay $50.00 to use the photo. That was a lot of money for me just to use his photo, since I am not making any money off of my research. However, I was eventually able to purchase on ebay a 128th Pa reunion pin from Antietam with the same photo of Croasdale on the pin. So I photographed that and use that when I give talks. So who owns the right to publish that photo? If I were to published something and use my photo of the pin I own, is that ok?

                Thanks.

                Paula

                -------------- Original message --------------
                From: Joseph Pierro <joseph_pierro@...>
                I made this point to Brian off-site, but it bears repeating here for the benefit of anyone who's considering publication.

                Physical possession of manuscripts and the "publishing rights" to their content are two distinctly different things. Just because someone donates the papers to a public institution, for instance, does not mean that the content is in the public domain.

                The reverse, however, is equally true. Just because an institution owns a document DOES NOT mean that they necessarily have any authority over whether it can or cannot be published or quoted from.

                Most institutions require that you obtain permission to reprint anything in their holdings, but in most cases (at least as far as Civil War-era documents go) doing so is merely a courtesy on the part of the researcher.

                Many archives have a natural tendency to think they have control over everything in their collection, when in fact they have no more legal ownership of the CONTENT than anyone else does. All they own is the PHYSICAL PIECE of paper and the right to reproduce an EXACT IMAGE of that paper. But the words themselves? That's something entirely different.

                In my experience, most archivists (especially at private institutions, such as historical societies) have little working knowledge of copyright law, and their default response is to say "We own the rights to it" when in fact they really don't.

                I've known too many people who've been dissuaded from undertaking projects because they were concerned about legal restrictions that did not in fact exist.

                --jake

                ----- Original Message ----
                From: Thomas Clemens <clemenst@...>
                To: TalkAntietam@yahoogroups.com
                Sent: Saturday, February 16, 2008 11:20:29 PM
                Subject: Re: [TalkAntietam] Copyright issue with Carman papers?

                Not only doI agree with Jake's point, but the manuscript and the letters were created mainly on government time with governement pay. That makes them government property. Nicethat his son "donated" them, but they were not really his to claim.

                Thomas G. Clemens D.A.
                Professor of History
                Hagerstown Community College

                >>> "Brian Downey" <bdowney@aotw. org> 02/16/08 6:49 PM >>>
                Hi friends,

                I know at least two members here will know something more about this
                thought posted on MHO today:

                "From what I remember, the Carman papers were donated to LoC by
                Carman's son, but without relinquishing rights to them, so they were
                not a 'gift' in the legal sense. Which means that any publication is
                subject to the residual property rights held by the family. To top
                that off the LoC has had no contact with the Carman family for years
                and has no clue what heirs may be around. So it's kinda like buying or
                selling a house that has no clear title."

                Richard Anderson (of Artillery Hell) mentions some "legal issues" in
                the same thread.

                (discussion here:
                http://www.military historyonline. com/forums/ ViewPost. aspx?ForumID= 12&ID=11176
                )

                __________________________________________________________
                Never miss a thing. Make Yahoo your home page.
                http://www.yahoo.com/r/hs

                [Non-text portions of this message have been removed]




                [Non-text portions of this message have been removed]
              • Joseph Pierro
                Stephen-- For copyright purposes, images are works just as much as text is. I m slightly over-simplifying here for reasons of space (and because the legal
                Message 7 of 10 , Feb 17, 2008
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                  Stephen--

                  For copyright purposes, images are "works" just as much as text is. I'm slightly over-simplifying here for reasons of space (and because the legal profession itself hasn't fully straightened out all the intricacies of copyright law in the digital age), but essentially if the images were ever reproduced for sale (CDVs, for instance), you consider them the way you would published books. If, however, prints were never made from the negative, or if the photographer only made a print for his own use, it's considered an "unpublished" work. The photographer is the "author" for "death of the author" purposes. (Ditto paintings. If it was never copied for sale in any way in any medium, it's "life of the painter +70 years to ge tyou to public domain.)

                  So images ALSO have statutes of limitation on copyright, but institutions have much more control over their use--if only in a practical, not necessarily legal sense -- because they can restrict the physical act of copying that image. Most repositories won't allow you to bring in a camera or a scanner to make your own duplication, so while they might not NECESSARILY own the publishing rights to, say, a particular photo of Stonewall Jackson, you can only get a photo to use in your book if you get the holder to make it for you (usually for a decent-sized fee).

                  If there's an image that Museum X owns, and the copyright has expired, they can control the reproduction (and determine the fees for its use) simply by restricting your access to their original. BUT, if that same image has been, say, reprinted in a book, you can -- legally -- scan it out of that book and republish it yourself without paying any for its use OR getting the museum's permission. (Repositories that used to make a good deal of money on photo reproduction fees are suddenly seeing a lot of revenue dry up, now that scanning and digital photo technology is allowing people to make publishing-quality copies straight out of books. As long as you can find a book where the resolution of the reprinted, public domain image is good enough for your needs, you can scan away and use it in your own book.)

                  For Civil War researchers, 99.999999% of wartime images are going to be public domain. I suppose there MAY be a case where someone took a Civil War photograph, never published it, lived past 1938, AND his heirs are aware of the intricacies of copyright law -- but in that event you'd have to be the unluckiest person who ever lived, in which case being the defendant in an intellectual property-rights lawsuit would probably be the least of your problems. :)

                  --jake

                  ----- Original Message ----
                  From: Stephen Recker <recker@...>
                  To: TalkAntietam@yahoogroups.com
                  Sent: Sunday, February 17, 2008 7:08:38 AM
                  Subject: Re: [TalkAntietam] Copyright issue with Carman papers?

                  Not that I am asking for legal advice, but how does this differ from
                  publishing an image that is in a collection? Is that where the fact of
                  it being an EXACT IMAGE comes in. Thanks.

                  > .



                  ____________________________________________________________________________________
                  Never miss a thing. Make Yahoo your home page.
                  http://www.yahoo.com/r/hs

                  [Non-text portions of this message have been removed]
                • Joseph Pierro
                  Paula, The situation you described is a perfect example of the sort of thing I just mentioned in my reply to Stephen. The photo was taken AND reproduced in
                  Message 8 of 10 , Feb 17, 2008
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                    Paula,

                    The situation you described is a perfect example of the sort of thing I just mentioned in my reply to Stephen. The photo was taken AND reproduced in some commercial form, it was obviously created before 1923 (since the subject was killed in 1862), so it's all public domain.

                    However, you don't even need to go that far. Copyright has something called "fair use," which essentially means that copyright doesn't apply under certain, VERY limited circumstances. If you're a lecturer or a teacher, you can show something in the classroom or in your talk and not worry about copyright. (However, if you FILM your lecture and then sell copies of it, then you'd be violating the copyright.) If you're a student, you can include copies of copyrighted material in your thesis, dissertation, etc. without acquiring rights. (If you then PUBLISH the thesis/dissertation, however, that's a different matter.)

                    "Fair use" doesn't merely have to involve instances where there's no money involved, however. Another example that comes to mind are book reviews. I review books all the time for Civil War Times. I'm paid for those reviews, and I often quote a few sentences from the book somewhere in the course of the review. That too is covered under "fair use."

                    Keep in mind the difference between purchasing rights to a photo and purchasing a copy of one. In the case of your Croasdale photo, the owners didn't own the copyright, but they were well within their rights to say, "We'll make a copy for you for $50" (regardless of whether you wanted it for a book or just to use as a slide in your talk). If that button didn't exist, they'd have had a practical monopoly on the image, and you'd have had to pay whatever they wanted if you needed to have that image. (Of course you could then have made copies of YOUR copy and then sold or even given them away.)

                    And before anyone asks, no, I am NOT a lawyer (though I did marry one). I used to be a book editor for a number of years. The most useful thing my first employer ever did was hold workshops for the editorial staff with the company attorneys, where they gave us crash courses in "intellectual property-right law for dummies."

                    --jake


                    ----- Original Message ----
                    From: "128thpa@..." <128thpa@...>
                    To: TalkAntietam@yahoogroups.com
                    Sent: Sunday, February 17, 2008 11:32:18 AM
                    Subject: [TalkAntietam] Copyright issue with Carman papers?

                    This is great info and I appreciate it all. I have a question then. Several years ago when I started my research on the 128th Pa, I wanted a photo of Samuel Croasdale, their Colonel killed at Antietam. In all my research, I have only come across one photo (I have been in contact with relatives and they don't have any). This particular photo is published in a book of officers that was put together by Gen Meade's son and I was told that I would have to pay $50.00 to use the photo. That was a lot of money for me just to use his photo, since I am not making any money off of my research. However, I was eventually able to purchase on ebay a 128th Pa reunion pin from Antietam with the same photo of Croasdale on the pin. So I photographed that and use that when I give talks. So who owns the right to publish that photo? If I were to published something and use my photo of the pin I own, is that ok?

                    Thanks.

                    Paula

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                  • 128thpa@comcast.net
                    Thanks Jake, I appreciate the info. I have looked into copyright law before and I thought I had a basic understanding, of course not of the intricacies - you
                    Message 9 of 10 , Feb 17, 2008
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                      Thanks Jake, I appreciate the info. I have looked into copyright law before and I thought I had a basic understanding, of course not of the intricacies - you have been extremely helpful.

                      Paula

                      -------------- Original message --------------
                      From: Joseph Pierro <joseph_pierro@...>
                      Paula,

                      The situation you described is a perfect example of the sort of thing I just mentioned in my reply to Stephen. The photo was taken AND reproduced in some commercial form, it was obviously created before 1923 (since the subject was killed in 1862), so it's all public domain.

                      However, you don't even need to go that far. Copyright has something called "fair use," which essentially means that copyright doesn't apply under certain, VERY limited circumstances. If you're a lecturer or a teacher, you can show something in the classroom or in your talk and not worry about copyright. (However, if you FILM your lecture and then sell copies of it, then you'd be violating the copyright.) If you're a student, you can include copies of copyrighted material in your thesis, dissertation, etc. without acquiring rights. (If you then PUBLISH the thesis/dissertation, however, that's a different matter.)

                      "Fair use" doesn't merely have to involve instances where there's no money involved, however. Another example that comes to mind are book reviews. I review books all the time for Civil War Times. I'm paid for those reviews, and I often quote a few sentences from the book somewhere in the course of the review. That too is covered under "fair use."

                      Keep in mind the difference between purchasing rights to a photo and purchasing a copy of one. In the case of your Croasdale photo, the owners didn't own the copyright, but they were well within their rights to say, "We'll make a copy for you for $50" (regardless of whether you wanted it for a book or just to use as a slide in your talk). If that button didn't exist, they'd have had a practical monopoly on the image, and you'd have had to pay whatever they wanted if you needed to have that image. (Of course you could then have made copies of YOUR copy and then sold or even given them away.)

                      And before anyone asks, no, I am NOT a lawyer (though I did marry one). I used to be a book editor for a number of years. The most useful thing my first employer ever did was hold workshops for the editorial staff with the company attorneys, where they gave us crash courses in "intellectual property-right law for dummies."

                      --jake

                      ----- Original Message ----
                      From: "128thpa@..." <128thpa@...>
                      To: TalkAntietam@yahoogroups.com
                      Sent: Sunday, February 17, 2008 11:32:18 AM
                      Subject: [TalkAntietam] Copyright issue with Carman papers?

                      This is great info and I appreciate it all. I have a question then. Several years ago when I started my research on the 128th Pa, I wanted a photo of Samuel Croasdale, their Colonel killed at Antietam. In all my research, I have only come across one photo (I have been in contact with relatives and they don't have any). This particular photo is published in a book of officers that was put together by Gen Meade's son and I was told that I would have to pay $50.00 to use the photo. That was a lot of money for me just to use his photo, since I am not making any money off of my research. However, I was eventually able to purchase on ebay a 128th Pa reunion pin from Antietam with the same photo of Croasdale on the pin. So I photographed that and use that when I give talks. So who owns the right to publish that photo? If I were to published something and use my photo of the pin I own, is that ok?

                      Thanks.

                      Paula

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                    • Stephen Recker
                      Jake, Thanks. Interesting. Stephen ... [Non-text portions of this message have been removed]
                      Message 10 of 10 , Feb 17, 2008
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                        Jake,

                        Thanks. Interesting.

                        Stephen

                        On Sunday, February 17, 2008, at 01:55 PM, Joseph Pierro wrote:

                        > Stephen--
                        >
                        > For copyright purposes, images are "works" just as much as text is.
                        > I'm slightly over-simplifying here for reasons of space (and because
                        > the legal profession itself hasn't fully straightened out all the
                        > intricacies of copyright law in the digital age), but essentially if
                        > the images were ever reproduced for sale (CDVs, for instance), you
                        > consider them the way you would published books. If, however, prints
                        > were never made from the negative, or if the photographer only made a
                        > print for his own use, it's considered an "unpublished" work. The
                        > photographer is the "author" for "death of the author" purposes.
                        > (Ditto paintings. If it was never copied for sale in any way in any
                        > medium, it's "life of the painter +70 years to ge tyou to public
                        > domain.)
                        >
                        > So images ALSO have statutes of limitation on copyright, but
                        > institutions have much more control over their use--if only in a
                        > practical, not necessarily legal sense -- because they can restrict
                        > the physical act of copying that image. Most repositories won't allow
                        > you to bring in a camera or a scanner to make your own duplication, so
                        > while they might not NECESSARILY own the publishing rights to, say, a
                        > particular photo of Stonewall Jackson, you can only get a photo to use
                        > in your book if you get the holder to make it for you (usually for a
                        > decent-sized fee).
                        >
                        > If there's an image that Museum X owns, and the copyright has expired,
                        > they can control the reproduction (and determine the fees for its use)
                        > simply by restricting your access to their original. BUT, if that same
                        > image has been, say, reprinted in a book, you can -- legally -- scan
                        > it out of that book and republish it yourself without paying any for
                        > its use OR getting the museum's permission. (Repositories that used to
                        > make a good deal of money on photo reproduction fees are suddenly
                        > seeing a lot of revenue dry up, now that scanning and digital photo
                        > technology is allowing people to make publishing-quality copies
                        > straight out of books. As long as you can find a book where the
                        > resolution of the reprinted, public domain image is good enough for
                        > your needs, you can scan away and use it in your own book.)
                        >
                        > For Civil War researchers, 99.999999% of wartime images are going to
                        > be public domain. I suppose there MAY be a case where someone took a
                        > Civil War photograph, never published it, lived past 1938, AND his
                        > heirs are aware of the intricacies of copyright law -- but in that
                        > event you'd have to be the unluckiest person who ever lived, in which
                        > case being the defendant in an intellectual property-rights lawsuit
                        > would probably be the least of your problems. :)
                        >
                        > --jake


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