Who Owns Spam?

Working with backup and email archiving tools, I’m frequently challenged to come up with realistic test data. I was recently asked to test the suitability of a storage system as a repository for email archives and had to come up with a set of email messages to use as test data. I want to distribute this data set to my clients so they can do their own testing, so I needed to have the right to distribute the messages. That triggered the question: Who owns the copyright on spam?

I’ve owned the domain name NAOL.COM since the day when domain registrations were offered free through the InterNIC. Since it’s so easy to fat-finger an America Online address to @NAOL.COM, and since some helpful fool started telling AOL users to add a leading N for "no spam" when they fill out online forms, my mail server sees an extraordinary amount of spam. One account gets several hundred messages a day from various porn sites.

It would be easy for me to take that spam stream and use those messages as valid samples of real email. While it would be simple technically to use this data, once I start sending copies to someone else, I’ll have to claim I have a legal right to copy the email. While I am not--and refuse to be confused with--an attorney, I don’t think I have the right to redistribute my spam.

It’s easy to draw an analogy to postal (snail) mail, where it’s a matter of settled law that anything sent unsolicited through the mails is a gift from the sender. So if I receive a MacBook Air, Compellent Storage Center or BMW M6 in the mail, I can do whatever I want with it. If I get a book or a letter from a famous person, I can sell it, but ownership of the physical object doesn’t give me the right to make copies.

Under the Berne Convention, copyrights are automatically created when a "work"--and I have a hard time calling spam from the kind of website Randy was dying to see in the "South Park"episode The Day The Internet Stood Still a "work"--is created, so the creators of those little gems are protected even if they haven’t included a copyright notice.

While one would think that spammers would like their "product" spread as widely as possible, and that it’s just perverse that messages sent in violation of the CAN-SPAM act would be entitled to copyright protection, it appears I can’t just use spam for test data.