Under your world view, the technical creators of the Internet (or any other
software technology) can impose any scheme they want by technically imposing
it via standards. This, of course, gives a third party power that they
should NOT have. I refuse to agree that some technical specification can
impose a license on a copyright holder just because the copyright holder
uses some subset of the technical capability.
One can argue that there is an implied license to view a web page (and thus make a local copy) if that web page is available to the general public, because that is what one is SUPPOSED to do with web pages. But going further to imply that one can use ANY image in that web page for building one's own web page (and thus creating a derivative work), just because one can link to that image, is not acceptable in my view. Just because the server CAN be set up to block such use does not require that it be done so to protect statutory legal rights. The Internet specification CANNOT be used to supersede statutory rights. Period.
It is NOT proper to find an explicit agreement in automated software responses. Software cannot be used to override the Copyright statute.
-Bodi
>
> --- "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:
>
> > 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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Received on Wed Aug 06 2003 - 21:00:05 GMT
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