> Dear Bodi,
>
> Is the HTML code below an infringement of Linda's copyright? Assume that
> if I photographed my computer screen while MS Internet Explorer was
> interpreting this code, it would be an infringement of her copyright.
> Assume that, if you go to the website below you see (as you would have
> seen a few weeks ago) images created by Linda. (I have included a
> "<!--" at the beginning to try to prevent mail readers from interpreting
> this as HTML.) If so, who is or who are the infringers?
>
> Is the website http://www.amherstrugby.org/myart.html an infringement of your
> copyright? If so, who is or who are the infringers? What if the page had a
> shopping cart and I was selling crystals?
This is an excellent, concrete example, that illustrates my position nicely.
Bravo to Linda Gruber, who appears to have implemented URL rewriting to deny my requests for her images to be displayed in your page when I loaded your HTML.
Here is a trace of part of the HTTP session that I initiated when I loaded http://www.amherstrugby.org/myart.html
Host: www.lindagruber.com
User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.5a) Gecko/20030728 Mozilla Firebird/0.6.1
Accept: image/png,image/jpeg,image/gif;q=0.2,*/*;q=0.1
Accept-Language: en-us,en;q=0.5
Accept-Encoding: gzip,deflate
Accept-Charset: ISO-8859-1,utf-8;q=0.7,*;q=0.7
Keep-Alive: 300
Connection: keep-alive
Referer: http://www.amherstrugby.org/myart.html
Pragma: no-cache
Cache-Control: no-cache
HTTP/1.x 302 Found
Date: Wed, 20 Aug 2003 23:03:49 GMT
Server: Apache/1.3.28 (Unix) mod_auth_passthrough/1.6 mod_log_bytes/1.2 mod_bwlimited/1.0 PHP/4.3.2 FrontPage/5.0.2.2634 mod_ssl/2.8.15 OpenSSL/0.9.6b
Location: http://www.novelart.com
Keep-Alive: timeout=15, max=100
Connection: Keep-Alive
Transfer-Encoding: chunked
Content-Type: text/html; charset=iso-8859-1
Now compare this to the image I requested from McDonalds:
Host: www.mcdonalds.com
User-Agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv:1.5a) Gecko/20030728 Mozilla Firebird/0.6.1
Accept: image/png,image/jpeg,image/gif;q=0.2,*/*;q=0.1
Accept-Language: en-us,en;q=0.5
Accept-Encoding: gzip,deflate
Accept-Charset: ISO-8859-1,utf-8;q=0.7,*;q=0.7
Keep-Alive: 300
Connection: keep-alive
Referer: http://www.amherstrugby.org/myart.html
Pragma: no-cache
Cache-Control: no-cache
The combined text of my request and their response is my licence. Because I chose to record it, I have written evidence of my licence to get their image. Note however, that copyright requires only any clear manifestation of the intent to authorize, so the fact that I have recorded it is sufficient for proof, but not necessary.
HTTP/1.x 200 OK
Server: Netscape-Enterprise/4.1
Date: Wed, 20 Aug 2003 20:40:30 GMT
Content-Type: image/jpeg
Etag: "0-0-e8dc-3f3d19e0"
Last-Modified: Fri, 15 Aug 2003 17:35:28 GMT
Content-Length: 59612
Accept-Ranges: bytes
To answer your question, your page is not infringing of either Linda Gruber, or of McDonalds. Neither is my use of your page, nor is our cooperation to ask McDonalds to create a copy of their image on my page. I asked they said "OK", so I have a licence. I also asked Linda Gruber, she did not say "OK", so I have no licence and did not get any images.
Morover, your page (which previously DID retrieve Linda Gruber's images) was not infringing before. Linda Gruber has, GASP, ended the period of unqualified affirmative responses to requests for her work, as is her right. The fact that your page directs requests back to hers has allowed her to keep her right to authorize. She was always in control of whether or not her images would be set. Now she has elected to use that control. Had you copied her images to your own site instead of inlining them, you would have deprived her of her statutory right to be the authorizor, which shows nicely how critically different inlining is from separate copying, even though a naive user might never know the difference.
Bryan
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