Re: Kelly v. Arriba Soft (new opinion from 9thCir.)

Kevin W. Grierson
Willcox & Savage, P.C.
One Commercial Place, Ste. 1800
Norfolk, Virginia 23510

mailto:kgrierson[_at_]wilsav.com
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http://wilsav.com
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>>> bryan_w_taylor[_at_]yahoo.com 07/28/03 11:25AM >>>

>The bottom line is that if author sets up his machine to serve individual
>images on a per request basis without checking the http-referer, he DOES
>approve of its use by my page in real time EACH time it is displayed on my
>user's browser.

KWG: No, he's just generally approved an affirmative response by his computer to a certain form of request. That doesn't mean that he is giving his approval if the use is one that infringes his copyright. If an author were to have a policy that he would respond to written requests for a hard copy of one of his photos by providing such a photo, even though he gave you the copy, upon your request, it doesn't mean that you have permission to do anything with it that you want, only that you now have a right to possession of the copy he gave you. Transmission of a copy does not transfer any of the author's copyright rights, whether the medium is online or otherwise.

>A web page link is nothing more than an instruction to the user's browser on
>how to formulate an HTTP GET "request" to use his work. If nothing in the
>headers is fraudulent, and his machine answers my user's request, then
>**explicit** permission is granted. This is absolutely no different than me
>giving my user direction on how to go to his office and ask him to see the
>painting.

>A copyright owner has no right to constrain me from cooperating with my >user to
>formulate the request to display his work on my user's machine. He is free to
>configure his machine to repsond to our request by denying access. But the
>burden is 100% on him to avoid responding affirmatively to requests. He >can
>either explicitly deny, or because the law requires it simply ignore the
>request, but he cannot say yes by his actions and mean no.

KWG: This is neither the law nor common sense. A copyright owner has no more obligation to deny your request than he has to deny your request to purchase or borrow a copy of his work in the "real" world. The law does not require an affirmative obligation on the part of a copyright owner to limit access to his works in ANY medium. In short, the copyright owner is free to assume that your request is for legitimate purposes and to say "yes" to your request for a copy, then sue you when it turns out that your intended use infringes his rights. That is NOT saying yes and meaning no, that is merely the assumption that you will abide by the law and respect the limitations of the copyright.

kwg