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This answer suggests that emails usually come with an implied license to do things like download them to your computer, copy them from your old server to a new replacement server, etc.

What if I sent someone an email without that license? I could disclaim the license in the message: "You may save exactly one copy of this message on exactly one server. You are not allowed to make any copies of this email. You may not copy it from the email server to your PC or phone, only stream its contents. You may not copy it from your email server to a new email server; you have to delete it before moving your data over. Google may not include copies of it in Google Takeout bundles or store copies of it in Gmail's internal backups. Forwarding the message is right out. More permissive licenses are available for a fee by calling (555) 555 1234."

Would I then be able to collect statutory damages from anyone who I could prove downloaded and saved a copy of my message locally in their email client instead of streaming it? Or who used Google Takeout while it was in their Gmail inbox?

Or is there some rule against copyright entrapment that prohibits an explicit license diverging so wildly from the implied license and actual practice?

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  • This is a good example, I think, of why all the fuss about copyright protection for emails is largely overblown. As soon as courts are forced to confront these types of scenarios, I suspect they're going to quickly find ways to slam the courthouse doors on anyone trying to control email this way.
    – bdb484
    Commented Mar 12 at 13:32
  • I wonder also whether the major email providers' TOS include any language meant to protect users from this sort of thing, the way Facebook and X do.
    – bdb484
    Commented Mar 12 at 13:33
  • @bdb484 Do I agree to the destination email provider's TOS when sending mail to their domain? I wouldn't necessarily have notice of it.
    – interfect
    Commented Mar 12 at 13:37
  • No, certainly not. But if your e-mail provider bakes that into the TOS you've agreed to, that would be sufficient. And if Google/Microsoft/Apple/Yahoo all imposed those terms on their users -- perhaps to avoid being dragged into copyright fights as a third party -- that would probably wipe out 99 percent of the potential claims.
    – bdb484
    Commented Mar 12 at 16:27
  • @bdb484 Surely a company doing this is very likely to have their own domain and handle their own email rather than using gmail or something.
    – User65535
    Commented Mar 14 at 7:49

1 Answer 1

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Yes, you could do that

But it wouldn’t work

Almost everything you are trying to prohibit would almost certainly qualify as fair use, and doesn’t need a licence:

  1. The purpose and character of the copying is to have access to correspondence sent to the recipient personally.
  2. The nature of the copyrighted item is personal correspondence which the sender can reasonably expect that the recipient will keep, and possibly copy for accessibility and archiving.
  3. Yes, the entire work is probably being copied.
  4. The effect on the market is nil because a typical email doesn’t have a market.

Overall, fair use.

The analysis is different if you emailed me your novella, but for everyday correspondence, all of the things you are trying to prohibit with your restrictive licence, can’t be prohibited.

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    If you were emailing a novella, you should probably agree on the license before sending it?
    – Jiří Baum
    Commented Mar 13 at 9:51
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    @JiříBaum Indeed. Publishers, movie studios, etc. generally refuse to even look at unsolicited manuscripts, to avoid potential legal problems down the line. You have to enter into a business agreement first, and it will spell this out.
    – Barmar
    Commented Mar 13 at 21:35
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    @JiříBaum Not only that, they generally demand to have manuscripts uploaded to either a specific dropbox, or to have them sent via Snailmail due to the sheer size manuscripts have. A typical book with annotations and notes can be much larger than the book you buy after publishing.
    – Trish
    Commented Mar 14 at 17:18

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