Thinking of suing Hyperreal? Read this first.

This is an attempt to describe Hyperreal in terms that accurately reflect its collaborative and somewhat amorphous nature. The intent is to help technologically ignorant lawyers and other interested parties better understand Hyperreal, so that legal issues can be resolved based on accurate assumptions. This document came about in response to some extremely poorly worded licensing agreements proposed by ASCAP and BMI.

However, it should be noted that none of this material has been reviewed by legal counsel. The statements herein should only be taken as an indication of the general views of Hyperreal and the perspective from which legal challenges regarding Hyperreal's content will generally be considered.

Definition and Organization of Hyperreal

Revision history:

A. Hyperreal and its Resources

1. 'Hyperreal' is a name given to a certain collection of resources that exist in electronic form. Examples of resources include mailing lists, databases, and web sites, along with the component data files, software applications, and underlying hardware that powers them.

2. The resources that comprise Hyperreal may be centralized on one physical machine or among many host machines, each of which may be accessible by different methods and network protocols.

Decisions regarding the distribution of resources and the means by which they are made accessible are dependent upon various factors that can change at any time.

For example, a resource that is accessible via one URL today may be accessible via two different URLs tomorrow, and vice-versa. What is transmitted from one IP address today may be transmitted from another tomorrow, even though the URL might stay the same.

In other words, no one physical host machine or logical address can be considered the authoritative repository for data storage or as a source for a data transmission, except on an instance-by-instance basis that can only be viewed historically (i.e., we can say how something was stored or transmitted in the past, but one cannot make any assumptions about the future).

3. The portion of the Hyperreal collection of resources that happens to be accessible via URLs starting with, or that is self-described as Hyperreal "the web site" or Hyperreal "the multimedia work", does not necessarily represent all of the resources in the collection that is Hyperreal.

The nature of domain names, uniform resource identifiers, and networking technology involves many layers of abstraction that make redistribution of resources possible and trivial. Therefore, legal contracts involving Hyperreal cannot rely upon assumptions of the stability of IP addresses, URLs, or physical hardware.

B. Responsibility for Hyperreal's Resources

1. The resources that comprise Hyperreal are maintained by many individual people who volunteer their time and effort to establish, update and preserve those resources.

2. Responsibility for a given resource is solely in the hands of those specific volunteers who contribute to its maintenance. Responsibility for some of the resources may be shared or divided among several different volunteers. The distribution of this responsibility may shift unexpectedly and can never be considered permanent.

For example, one person may establish a resource, then hand over maintenance of it to someone else, and that person may abandon their role without notifying anyone. If the resource's existence is cause for legal action, it should be treated the same as a situation involving the graffiti on a wall. Many people made the graffiti possible -- the graffiti artist, the wall's owner, the wall's builder, the spray paint manufacturer, etc. The graffiti's creator committed the act of creating it and may be liable for that act, but the graffiti's content may be protected as free speech, and the wall's owner is not necessarily any more liable for the graffiti than the spray paint manufacturer.

Therefore, if you object to one of Hyperreal's resources and you are looking for someone to sue, the nature of Hyperreal and its division of responsibility will require careful consideration; you can't just sue, say, the owner of the domain name through which you accessed the resource.

3. No central authority delegates responsibility for Hyperreal's resources. Volunteers decide among themselves which resources they will maintain.

4. Interdependencies between the resources affect the degree of responsibility of one resource's maintainer for a resource maintained by another volunteer. That is, the maintainers of resources upon which other resources are dependent may exercise some degree of editorial control over the dependent resources for various reasons that are specific to the services provided. Thus, any hierarchy of responsibility for publicly accessible content should be considered a temporary result of the voluntary agreements and dependencies that exist among resources and the parties responsible for them.

For example, one volunteer may be providing the majority of the hardware, its HTTP server configuration and day-to-day maintenance, and may have arranged for its Internet access. The other volunteers who utilize that hardware may be required by the first volunteer to restrict their usage to activities that are compatible with that volunteer's intent with providing these services, as well as with the terms of service that have been agreed to between the volunteer and any other parties, such as the Internet service provider.

5. The name 'Hyperreal' may also refer to some or all of the volunteers responsible for the resources. The current membership of Hyperreal as a loose organization of volunteers cannot be considered stable, but at any given moment, the current roster could be enumerated if necessary.

6. Hyperreal resources may make reference to other resources that are not under the control of the Hyperreal volunteers. Responsibility for the references does not extend to the referenced resources. For example, if a web site hosted by Hyperreal contains a hyperlink to a web site that exists completely separate from Hyperreal, there is no responsibility on the part of any Hyperreal volunteer for the content of the remote site.

7. Hyperreal resources may include facilities by which external, anonymous users on the Internet can contribute to the resource (e.g., a message board, mailing list archive, or automated links page system). The responsibility for such contributions rests with the external contributors. Any editorial control over the content of such contributions, exercised by the facility maintainers, who may or may not be Hyperreal volunteers, does not imply total responsibility for the content.

For example, if someone posts a pirated audio file to a Hyperreal-hosted mailing list, the Hyperreal volunteers who provide the list service are not responsible for the copyright infringement, even if they have made attempts ensure that such posts do not make it to the listmembers. The only exception to this would be if the list were provided for the specific purpose of facilitating copyright infringement.

C. Copyright Considerations

This section is meant to be informative, to help clarify certain copyright issues for Hyperreal's volunteers, and leads to an explanation of why Hyperreal cannot be party to licensing contracts like those offered in the past by music publishing organizations.

1. Per international convention, the creator of an original work has inherent copyright over that work, unless the work is in the public domain or the rights have otherwise been legally transferred.

2. Per international convention, statements of copyright are reflections of copyright ownership for legal clarification. They do not, in and of themselves, grant rights by their presence or rescind rights by their absence.

3. To the extent that a Hyperreal resource or portion thereof is an original work by a volunteer who created and/or maintains it, and unless otherwise delegated, copyright is owned by that volunteer. This right does not supercede any other rights held by others over the same work.

This specific copyright may be expressed in a blanket copyright notice crediting 'Hyperreal' as the owner. In this context, 'Hyperreal' refers to the specific volunteers (as per §B.5), not the collection of resources, nor a central authority acting as a publisher of resources.

4. At the time of this writing, very few legal precedents have been set in regard to distributed publishing and its relationship to networked data storage and transmission. There are even questions about jurisdiction.

For example, if a Hyperreal volunteer in Germany, without asking anybody, makes available on an American volunteer's HTTP server a digital representation of a sound recording whose musical content is owned by a record label in England, and the file is retrieved over the Internet by someone in Canada, who is responsible for copyright infringement, to what extent, and where is the case decided?

It is the opinion of the volunteers that the responsibility of the Hyperreal volunteers for copyright infringement is likely to be limited to the extent to which applicable legislation is in effect and what legal precedents apply, and to which the volunteers had control over the infringement.

This can only be determined on a case-by-case basis, and jurisdiction is of considerable importance. Legal contracts designed to permit or disallow infringement of certain copyright cannot be signed in good faith when the applicability and enforcability of copyright law is ambiguous; the contract must be compatible with all applicable copyright laws. In such situations, applicable contract law is likely, in the short term, to supercede the relatively ambiguous copyright law, and may result in an outcome that is disproportionately beneficial to the copyright owner and/or the agents who offered the contract.

5. Due to the risk that copyright laws enacted in the USA may be applicable and may ultimately impose enforcable penalties on some of the American Hyperreal volunteers who provide services to other Hyperreal volunteers and to anonymous users on the Internet, and due to the risk that copyright laws in other countries may be applicable and enforceable in some capacity through international agreements, those service-providing American volunteers have asked the volunteers who depend on the services to limit their activities, in order to minimize the risk of negative legal action being taken against any of the volunteers.

For example, an effort was made to remove all audio files that may have been at risk of copyright infringement, and an effort was made to monitor the filesystems shared by various volunteers in order to detect new files that could create new risk. The volunteers were also asked to avoid making publicly available any potentially infringing content.

6. Only to the degree that a reference (e.g., a "link", perhaps) to infringing material legally constitutes infringement or facilitation thereof, does the creator/maintainer of such the reference and/or the creator/maintainer of the Hyperreal resource bear responsibility for that infringement. At the time of this writing, sufficient precedents have not been established; the degree of infringement and responsibility must be determined on a case by case basis in a court of law. A legal contract intended to impose penalties for potentially infringing references cannot be signed in good faith, when the infringement and responsibility for it is otherwise in question.

D. Acknowledgement of Music Licensing Requirements

1. The major labels (i.e., the RIAA) and publishing associations (BMI, ASCAP, etc.) and their agents pushed for the enactment of various pieces of legislation in the USA. This legislation restricts allowable digital transmissions to those that meet certain criteria, and allows for both blanket and specific licensing agreements to be created between broadcasters and copyright owners.

2. The qualifications for a broadcaster to be eligible for a blanket license for certain types of digital sound recording transmissions are detailed in the Digital Millenium Copyright Act. The restrictions on the broadcaster are significant and essentially allow only an unpredictable, temporary, radio-like service. This kind of service is, at this time, at odds with the missions of the Hyperreal volunteers in providing the resources they provide, and is not considered a viable option.

3. Although the musical content in Hyperreal resources is intended to be educational and archival, the risk of unsympathetic copyright owners filing suit and the questionable outcome is at this time too great; therefore any potentially infringing content in the Hyperreal resources has been removed already.

4. Per a letter received from BMI, dated 04 Feb 1999, the "Hyperreal Web Site located at" is licensed to transmit BMI-affiliated music. This license is effective from the date of their receipt of a letter sent to them by one of Hyperreal's volunteers (roughly 07 Aug 1998). This license applies only to the underlying compositions and not to particular sound recordings, for which (typically) the applicable record label must grant permission (unless the blanket license is in effect). This license has no monetary terms whatsoever.

5. ASCAP has requested that Hyperreal make a similar licensing agreement for the underlying compositions in their catalog. No agreement has been reached, in part due to the ambiguity of the contract offered, and its failure to address the points made here. The removal and relocation of potentially infringing content from Hyperreal resources negates the immediate need for an agreement with ASCAP.

6. Some copyright owners have established agreements with Hyperreal volunteers for particular sound recordings to be made available in Hyperreal resources. The terms of such agreements may or may not be provided in the resources; the parties to the agreements are the only people responsible for and bound by them.

For example, the Mute label (UK) allows one Hyperreal volunteer to offer audio clips from the 5 million-selling Moby album 'Play' on the web site, a resource which that volunteer created and maintains, and which is dependent on services provided by other volunteers. The clips are referenced ("linked") on resources accessible through both and, and possibly elsewhere on Hyperreal and non-Hyperreal resources maintained elsewhere.

7. References (e.g., hyperlinks) can exist even if the potentially infringing content they point to is removed or made inaccessible. The references over which the parties to a licensing agreement have no control, regardless of their locations, cannot be covered by, invalidate or violate the agreement. Such references cannot in good faith be used as the basis for the monetary terms of the agreement.

Thus,'s maintainer cannot owe money for's references, and vice-versa, even if both resources are dependent on other resources that may be under one or the other maintainer's control. (This is perhaps not the best explanation; the point is that the degree of infringement inherent in references varies according to a number of factors over which the provider of the reference has little, if any, control, and thus should not be used for negotiating fees in any licensing agreements).

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Saturday, 10-Aug-2002 13:04:05 PDT