Janice A. Oser, Esq.

Is it illegal to forward a personal e-mail, without permission? Maybe so, but probably not, unless the e-mail – that is, what the sender expresses in the e-mail – has or is likely to have commercial value.

Time was when you could send a personal letter to someone and know that you had the right to keep it private. That is, the contents of the letter belonged to you and not to the recipient, and could not legally be divulged to others without your permission. You had the right, in other words, to remain unpublished.

For centuries, courts have held that authors retained rights to their expressions even after recipients took physical possession of the letters. An unfaithful husband, for example, had control of whether and when his lover could copy and distribute to any other person the love letters the unfaithful spouse had sent her. A Vermont court held in 1899 that the unfaithful husband had a legal right to such control, in a case that dealt with the admissibility of letters exchanged between allegedly adulterous couples.

By analogy, the author of an e-mail should have the legal right to control the forwarding of an e-mail. The federal Copyright Act of 1976, however, was designed to preempt – that is, to take priority over – the common law of copyright. The Act, especially an amendment enacted by Congress in 1992, has made the right of the author of a personal e-mail or letter to control its distribution, legally speaking, highly problematic.

Traditionally, courts have characterized the rights of authors to control distribution of their personal expressions and works as property rights, rather than as privacy rights. If an author is to have a right in this day and age to control the distribution of personal expression, in letters or e-mails, it would, it appears, have to be held by the courts to be a privacy right rather than a property right.

Thereby hangs a somewhat complicated legal tale.

In one of the most influential essays in American legal history, published in 1890, Louis Brandeis, then a lawyer in Boston, and Samuel Warren, on the faculty of the Harvard Law School, argued for distinguishing the property rights of authors, composers or artists regarding their works under the copyright laws, on the one hand, from a common law (judge-made rather than statutory) right of privacy, protecting personal writings and all other personal productions against publication in any form, on the other.

The article, “The Right to Privacy,” was published in the December 15, 1890 issue of the Harvard Law Review. Subsequently, Brandeis championed the right to privacy as a notable Associate Justice of the United States Supreme Court, on which he served from 1916 to 1939.

In a much more recent law review article, Ned Snow, on the faculty of the University of Arkansas law school, argues that the common law right of privacy with respect to one’s personal letters and e-mails could and should survive the federal Copyright Act. The article, “A Copyright Conundrum: Protecting Email Privacy,” was published in the Kansas Law Review in 2007.

The problem, briefly, is this:

Under the common law the author of a letter has the right of first publication, or, in other words, the right to be unpublished. Similarly, under the federal Copyright Law, the author of a letter or e-mail has the exclusive right to reproduce, distribute or display it. This right differs, however, from the common law right of first publication in significant respects. One of these concerns what constitutes publication.

Under the common law, distribution of a single copy of a heretofore unpublished work would be publishing it, making it public. The word “public” in the federal statute, however, appears to refer to a substantial number of persons outside of a normal circle of a family and its social acquaintances. Thus, whereas the common law right of first publication would protect an e-mail sender’s expression from distribution by the recipient to even one other person, the federal right of first publication appears to apply only with respect to a distribution made en masse.

Accordingly, an e-mail recipient who forwarded the e-mail to a few acquaintances, for example, would not appear to have made a public distribution in violation of the sender’s right of first publication under the Copyright Law.

Probably the most important difference between the federal statute and the common law, however, concerns the doctrine of fair use. In both, an author’s exclusive rights to a work are subject to a user’s defense of fair use. In an article reviewing a published literary work, quotes from the work to illustrate the reviewer’s points can be defended as fair use. A court weighs various factors to determine if use of an author’s work is fair use.

Under the common law, however, the fair use defense did not apply to a work that was unpublished. By contrast, the Copyright Act permits the fair use defense with respect to unpublished works. Prior to the amendment of the Act in 1992, the United States Supreme Court, showed a reluctance in a 1985 opinion to apply the doctrine to unpublished works. The language of the opinion suggests an attempt to uphold common law privacy protection under the Copyright Act. Federal appeals courts began to follow the Supreme Court’s direction by refusing to apply the fair use defense to unpublished works.

In response to this judicial trend, Congress amended the fair use provision of the Act in 1992. Under the 1992 Amendment, the fact that a work is unpublished does not in itself bar a finding by a court of fair use. Subsequently, courts began applying the fair use principle to unpublished works, giving most weight to the effect of the use upon the potential market for or value of the work and ignoring an author’s privacy interest. Unless an author’s expression in an e-mail has commercial value, it is not protected under the Copyright Act. “Simply put,” Professor Snow writes in his law review article, “the Copyright Act fails to protect email privacy.”

What got Professor Snow’s law review article headlines in print and on the Web was the implication that forwarding an e-mail could be illegal. According to Professor Snow, the common law right of privacy, and with it the privacy of personal letters and e-mails, survives alongside the federal statute that supposedly superseded it.

His argument, to sum up and simplify, is this: Congress’ power to enact the Copyright Act derives from the Copyright and Patent Clause in the Constitution. That Clause empowers Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The utilitarian purpose underlying the Copyright and Patent Clause implies that property rights legislated by Congress must further public utility.

Specifically, Professor Snow argues, the right of first publication is valid only to the extent that there is a possibility that the author will publicly disseminate the work. The constitutional limitation of the statutory property right of first publication to utilitarian interests should not be construed as preempting the common law right of first publication, a right that serves privacy interests. The common law right to remain unpublished survives.

Accordingly, you can make a constitutional argument that the forwarding, without your permission, of the personal, private, e-mails you send is illegal. Or you can choose to rely on your trust in the recipient or the recipient’s good e-mail manners. Or you can, as a Columbia Law Professor is reported to have advised, limit what you say in e-mails to what could be put in headlines for all you care – supporting Professor Snow's contention that electronic forwarding is killing private expression.