> So in other words, the spec itself does NOT consider whether the file is an
> image, etc. Thus, how can you imply permission to grant a license if the
> final result depends on the client as well as the server??
Indeed the spec DOES include a header field for describing the content type of the file. This occurs in both the request and the response. You ask for a resource and specify an acceptable list of file types. If the server can respond, it tells you specifically which type it uses.
And again, I am not making an "implied" licence argument. I will accept the burden to point to specific text in the HTTP negotiation to authorize anything that would otherwise be restricted under Title 17.
> > Do we really want to force everyone using a protocol to have to sign a
> > contract saying they assent to its design choices? Isn't that what you
> > say when you use it?
>
> No, but we also do NOT want to imply agreements based on technical
> specifications that user may, or may not, totally understand. The average
> web page builder does not necessarily know that, by putting an image online
> via a web page, they are making that image available for anybody to use.
> Legally, of course, they are NOT. Just because it CAN be done technically
> does not imply permission to do so.
I certainly DO want to find agreements based on technical specifications even if the user may or may not totally understand them. He is responsible for his own actions. Nobody forced him to play on the internet. If the alternative is others relying in good faith on the face value meaning of his transactions and nevertheless suffering legal liability, then you bet I want to hold him accountable for his actions even if he doesn't understand them. And since when is understanding or even reading the contract part of the law? Moreover, placing the burden on users to ask "do you really mean that?" everytime is not technically viable.
> Clearly, this is NOT explicit. Look up the word in the dictionary. Nobody
> has granted explicit permission to use the image. The fact that some
> OPTIONAL standard somewhere says that it CAN be done is hardly explicity
> permission.
I can point to the word "OK" in response to specific request text. That is an explicity licence. Yes, the standard is optional, but the scenario we are discussing occurs after it has been opted for by both parties.
> An explicit license requires an agreement by the party, not some technical
> specification.
The explicit license here is the HTTP transaction, not the spec which defines the "usage of trade" therein. "Usage of trade" is the UCC's term, not mine -- see my recent post here where I quoted the UCC sections at length on this. The UCC is very clear on how judges should use such documents during fact-finding to give meaning to the agreement created in the language of choice of the parties.
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