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

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Tue, 05 Aug 2003 11:21:01 -0400

• "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:

> You are attributing the action of software as the explicit action (or
> knowledge) of a human being. That is hardly the case, and not likely to
> become the law. Nobody can know all aspects of how a program that they DID
> NOT WRITE (and probably could not write because of the lack of technical
> knowledge) can work, and such knowledge cannot be implied to the software
> user.

First, I'm not expecting anyone to be accountable for all aspects of the web server, just the ones which comply with the documented standard for its behavior. Although they certainly could read the source code themselves for something like the Apache web server, I certainly am not placing this burden on them. If they want to have the machine communicate their nuanced responses, then they probably want to read at least the manual or the plentiful howto's that are available on the internet. They're always free to hire somebody with this kind of knowledge. However, if they refuse to take advantage of this functionality and choose to procede with the default behavior, then they're exercising their Title 17 rights to grant use under those terms.

Second, we are not talking about accidental functionality here. We are not talking about clients exploiting bugs where the software didn't work as advertised. The http server works in a very forseeable way. In fact it takes an ongoing and conscious set of actions to make the web server serve a file. The following actions are the explicit actions of a human being. The HTTP transaction log is the record produced as a result of these actions and the request of the client.

1. The user must place his content on the server, using files as the scoping unit for resources to be given URI names in step 4
2. He must select and install the web server software.
3. He must configure the web server software to listen on the HTTP port
4. He must configure the web server to listen to requests using his domain in the URI
5. He must configure the web server to have access to the file structure containing his resources (setting document root and permissions)
6. He must grant read permission on his files to the OS user that owns the process the web server will run as
7. He must activiate his HTTP server
8. He must attach the server to the internet
9. He must configure the server and all other systems upstream to allow HTTP port connections to arrive
10. He must pay power and bandwidth costs

If each of the actions above is maintained when the point that an HTTP request comes in then in response to that request, his server will respond "OK" and send the document, along with some other information describing what was sent. In order to facilitate things it is recorded in a technical format whose meaning is defined by the W3C standard for HTTP, which actions 3, 4, 7, 9 indicate he has selected to be bound by. Actions 5, 6, 7 indicate his intent to have the HTTP server give effect to his grant of copyright authorization. Actions 2, 3, 4, 7, 8, 9 indicate his willingness to negotiate with any party with internet access. Actions 1, 5, 6 indicate the scope of the individual "works" that he is willing to negotiate for.

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