On Fri, 22 Aug 2003, Robert F. Bodi wrote:
There is more to this story than existing law. It is an issue in blocking
the promotion of the arts and sciences. See comments made below. sterling
>
> ----- Original Message -----
> From: "Bryan Taylor" <bryan_w_taylor[_at_]yahoo.com>
> To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
> <CNI-COPYRIGHT[_at_]cni.org>
> Sent: Friday, August 22, 2003 12:17 PM
> Subject: [CNI-(C)] Re: Kelly v. Arriba Soft (new opinion from 9thCir.)
>
>
> >
> > --- "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.
Seems to me the delivery of the content cannot be made unless the software infringes. It is this point that makes it questionable to say the content placed on an internet active server has not been made available to the public at will on demand without any restriction and that the person that placed it did so fully expecting that every single user that requested services from the server would do so by causing the server to infringe. That is implied permission if not actual permission is it not?
What does case law have to do with this issue?
>
> > 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.
>
I do not agree that the driver of rental company car acting in accordance with a contract in fact between the driver and the rental car company, who during the course of the permissioned contractual use, damages the rental vehicle, is the same, as person who on the public internet points her browser to a server that responds by infringing on the content that the provider intentionally, willfully made avaialble to the public domain. In the driver case, the responsibility is fixed by contract, in the surfer's case, she is innocently using the publc web with full and complete permission and the expectation is that she will actually do what she has done, make a request of the server for a content, and the server has done what was expected, serve a content, and the result is as expected, the file was served into the public internet.
> > 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.
It is "not able to" that we are talking about here, it is "expectation that it will be done", it is that inorder to get the content, the server is expected to serve the content, it cannot be done any other way, the so called act that you suggest is infringing, is the act of the providers own server.
A provider's placement of a content available for services to the public internet is but one place that such activity on the internet creates, it is argued, the blanket permissions and if the content is of the type that it can be collorabatively improved, then to rule otherwise would rule to exceed the constitutional limit that copyright must advance the art and science. IT is presumed that all content on the internet is collaborative and can be improved by the millions of users who activate the server and receive a content. This content can be bandied about between users, and have its content "added to or deleted from" (improved) in such a way that on every transfer the content is moving toward bigger and better forms. That is improving the arts and the sciences and I submit that no copyright law can oppose that function of the net, unless it can somehow be shown that the work of one is better than the work of millions.
>
> > And don't try to
> > confuse the issue: this point is a matter of contract law, not of
> copyright
> > law.
>
The contract if it exist, seems to be unconscionable and totally against the public interest. If the entire function of the interent is to serve the arts, sciences and information needs of society "by collaborative improvement" and if the collaborative improvement works in, and depends on, collaboration by and between users of the original content and all of its improvements, to accomplish that improvement function, then any contract which would seek to terminate the functioning of a technology that by its very nature, seeks to serve the good of society as a whole, might be doomed?
> 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,
Since when can machines negotiate? the law of agency applies to machines? Ok, Someone programs a machine to rob a bank. The machine robs the bank and hides its bounty, on capture, it is tried, convicted and jailed for unmachinelike conduct? I believe the desiger of the machine would find the jail not because the machine negotiated, but because the machine was a tool of the crime.
>
> 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.
>
Right, the merchant not his register is the source of the permissions
> 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.
>
why is it ludicrous? Seems to me that claim that it is not is the doubtful claim.
> 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.
Gee this seems to reach out, the authorization occurred when the
provider placed the content on the internet enabled and connected
machine that was operating a server avaliable to the internet.
You are confusing the issues. There is no
> requirement that a copyright owner prevent others from improperly copying an
> image.
Is It possible to improperly copy an image that the
provider's own server copied?
Thus, whether or not their use of server software aided in the
> infringement is irrelevant. The issue is they did not grant you permission.
I think the issue is how can it ever be argued when a server delivers
content on the demand of one or a billion users, that the content
provider did not grant her permission for the world to use her
content. All the user has to do is to request the providers
server to infringe the providers content and to deliver the
infringed copy to them? And the provider gave her permission by
her own conduct.
>
>
> > 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.
This observation might mean that we are approaching the day when
there will be a restriction in the allowed scope of congress to
interfere with the advancement of the arts and the sciences by
copyright legislation.
Any copyright or monpoly of content would interfere with the
interent.
> -Bodi
>
>
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Received on Mon Aug 25 2003 - 19:15:02 GMT
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