>
> --- "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:
>
> > The law cannot "prevent" other from viewing the pages, but it DOES
create a
> > cause of action for improper copying. But Linda is free to use
technology
> > to further enhance her rights. This is not an either/or issue. One can
do
> > BOTH to protect one's creative works, but there is no OBLIGATION, under
the
> > law, for her to block others from improper use.
>
> You seem to be in denial of the basic fact that Linda chose to use a
machine to
> negotiate and act on her behalf. You emphatically ARE under a legal
obligation
> to honor the terms of contracts or licences that are formed by machines
that
> act on your behalf.
Please cite to case law that supports this assertion in the manner in which you intend to apply it, i.e., that just because software is capable of allowing an infringing act to occur, that the user of that software is granting such a right.
> Denying this point is not even helpful to your argument: if
> you aren't responsible for your machines actions, then I'm not responsible
for
> my machine's actions either and you have no cause to sue me.
There is a big difference. The infringer actually WROTE the code INTENDING the infringement. That is hardly the same thing.
>
> The law is well settled that if you set a machine running and it acts in
> accordance with your commands that you are legally obligated by its
actions.
Please cite the law. Further, it is NOT merely the commands from the user, but the commands from third parties, that the server is responding to. Your argument is that, just becuase the server CAN respond to third party commands, that implies the right for it to do so. That is silly. It's like making the auto rental company liable for the driver who runs over a pedestrian because the car is CAPABLE of such direction.
> You might as well argue that vending machines don't make sales because
machines
> can't enter you into a contract without synchronous human participation.
If you
> care to dispute this point, please provide some references.
Prove YOUR Point. It is nearly impossible to prove a negative. I would like to see one major court ruling where a user of software was found to implicity or explicity grant a license just because their software was able to perform an infringing act.
> And don't try to
> confuse the issue: this point is a matter of contract law, not of
copyright
> law.
No kidding. I stated long ago that this was a contract issue. But copyright contracts are constrained by copyright law.
> The copyright act preserves only a right to authorize. Contract law
defines how
> authorization occurs. If you use a machine to negotiate your authority,
In the example being discussed, no machine was used to negotiate any such authority. The server was not set up for that purpose, and no such indication was shown by the user.
> then
> you are so bound and your rights are used up as far as the party and act
in
> question are concerned. There are no causes of action against authorized
> copying, nor against authorized creation of derivitive works. If you
negotiated
> poorly, then your only legal recourse is to learn from your self-defined
> mistake and change the way you negotiate in the future. For example, you
could
> do exactly what Linda did and reconfigure it to behave differently. Or you
> could unplug it altogether. The law doesn't obligated you to do anything
other
> than honor the agreements you negotiate. The copyright act does not help
you
> negotiate, as many a musician has discovered when they finally got the
paltry
> check from their record label.
>
> I recently posted a written record of McDonald's HTTP authorization (and
active
> participation) in the creation of a copy of their picture on my machine,
which
> clearly and explicitly grants me the right to have a copy made on my
machine
> and to display it with requested referring page.
Case law has NEVER stated that merely because a person's server served an image to a third party, that that third party is given a license to use that image in its own web page. Because you are asserting it, just provide a few case examples. I can hardly provide a few non-examples, now can I?
You are about as likely to get
> a court to ignore this evidence as you would be to exclude a sales receipt
on
> the basis that a merchant who pushed the buttons on the register didn't
intend
> to agree to the contract of sale.
The point is not whether the court "ignores" the evidence, but what implication the evidence provides. Your claim that it is an explicity licensne is ludicrous.
A court is required to start its analysis by
> examining the tangible evidence of what actually took place, and that HTTP
> transcript is pretty definitive evidence for what happened when my machine
> negotiated with yours. To the extent that it is somewhat technical, the
HTTP
> specs provide the written trade code to guide the court in its
interpretation.
> However, it's pretty plain in it facial meaning.
The only "meaning" is that you requested a copy be made, and a copy was made. There is nothing at all in the HTML that says, one way or another, that the copy was authorized. You are confusing the issues. There is no requirement that a copyright owner prevent others from improperly copying an image. Thus, whether or not their use of server software aided in the infringement is irrelevant. The issue is they did not grant you permission.
> Or as I said before, argue that machine actions don't obligate their human
> masters in which case you STILL have no cause of action against me when my
> machine created a copy of your work all by itself.
Case law is still developing, but it is pretty clearly heading in the direction opposite you position.
-Bodi Received on Fri Aug 22 2003 - 23:37:24 GMT
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