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

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Wed, 20 Aug 2003 17:45:00 -0400

• sstouden[_at_]thelinks.com wrote:

> > The HTML spec agrees. See its introduction:
> > http://www.w3.org/TR/html4/intro/intro.html
> >
> > >From this into:
> >
> > <quote>
> > 2.1 What is the World Wide Web?
> >
> > The World Wide Web (Web) is a network of information resources. The Web
> relies
> > on three mechanisms to make these resources readily available to the widest
> > possible audience:
> >
> > 1. A uniform naming scheme for locating resources on the Web (e.g.,
> URIs).
> > 2. Protocols, for access to named resources over the Web (e.g., HTTP).
> > 3. Hypertext, for easy navigation among resources (e.g., HTML).
>
>
> Item number 1[the naming scheme] is not needed to constitute the world
> wide web. [...]

You do realize that you are arguing with a quotation from the HTTP spec, right?  

> the naming scheme is just as you said a directory, an index, like
> the telephone company switch directory information, it uses
> a database known as DNS to look by name and match the ip number to
> the name. So joe.com would be looked by the operator ( a
> computer server) and she would match it to for example 101.22.32.450
> the http then dials that number just like on a telephone system.
> the world would be a lot better off without the Domain name system. But
> just as with the phone system, if you knew the ip number, you do not need
> to call the information operator.

The URI naming standard does not require you to use DNS. You seem to be equating the two. They are fundamentally different. The URI naming standard describes recourse naming in terms of: protocol://machine/resource . The machine can be named by any method your computer understands, DNS, IP, hosts alias, Windows name, etc...

> HTTP is a transport procedure, a protocol to transport files. (it simply
> facilitates the transport of a file from one location to another. (one
> computer to another)
>
> any other protocol could be developed and many already exits that can do
> the same thing. The protocol Html is a standardized means of marking up a
> text based page.
>
>
> the hypertext was an SGML idea and I believe the patent for that is owned
> outside the us.
>
>
> so what we are really saying is that when a person knowingly places a file
> with content marked up according the specifications of the HTML language,
> on a computer attached with open ports to the Internet, in such a place on
> the comouter, that the server can be told by a request from a
> user(usually an html get request}, to fetch a copy of that file and to
> send it to the computer then that author of that content
> knowingly intended to make available to the
> internet public , and it just seems impossible to argue that that is not
> a conscious act by the author to place the contents of his file for
> copying by the entire connected world. That is an act of placing the
> content of that file into the public domain.

You are playing fast and loose with both the law and the facts.

- there is no HTML markup at all within an image file served by HTTP
- there is no such thing as a "html get request" (that is HTTP)
- offering to accept requests and create copies upon receiving the request is

not a blanket grant for copying by the "entire connected world". The fact that others in the past have successfully asked for a copy does not obligate the author to continue to say yes.
- The law does not contain any concept of implicit release to the public domain

> all of the other the 3, naming system, protocol and hypertext do no more
> than facilitate and constitute the domain, the public domain, in which the
> author knowingly donated his or her content.
>
> I say it again and again and again, if your author was to protect his or
> her stuff, she should keep it out of the public domain. The interent is
> the public domain.

The internet is not the public domain, and arguing otherwise is wishful thinking. You can probably find caselaw saying as much.

The internet is a bunch of telecom equipment that allows machines to pass packets. The fact that some people built such a network does not mean that the Copyright Act, established by Congress in furtherance of its Constitutional powers, will be set aside because you say it should. And it certainly doens't have to be in order to work.

---

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