>
> --- "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:
>
> > 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.
>
> You just completely ignored the point. The software grants authorization.
Below
> I cite four cases showing deep links are legal.
That depends how the deep links are used. Deep links that give the appearance of still being on the linker's site, and not the linked party's site, have been declared to be improper.
> If you set up a machine to engage in contract negotiation, do you agree
that
> you are bound by the resulting contract?
If I make such statements, yes. If I don't know that the machine will make such agreements, probably not.
> Are vending machine operators able to sue people who buy candy for theft?
Oh what a DUMB example. Did they pay for it? Voluntarily? Then it is hardly theft. Duh!
> Are banks able to sue people who transfer money using an ATM for bank
fraud?
Yes, if they end up taking money that did NOT belong to them. In fact, there is an example on point. One bank allowed its customers to withdraw money after 9-11 even though the bank could not verify balances due to damaged communications links. Some customers took advantage of that, and took far more money than they knew they had. Those customers are being both sued by the bank, and prosecuted for theft. So yes, banks can go after ATM users even though the ATM approved the transfer.
> Is Hotmail bound by the terms of its end user contract when someone signs
up
> over the web?
That depends on the facts.
>
> What if I run my own web mail, written by someone else, but otherwise
identical
> to Hotmail, with the same agreement. Can I sue someone for unauthorzied
access
> to a computer system when they use the account the software created for
them?
>
> The answer in every case is that consciously using a machine that is
capable of
> creating a contract can result in legal contract obligations.
No, you are wrong.
Copyright
> licensing is one special case of this much more general rule.
>
> > > 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.
>
> It makes no difference at all who wrote the software. Does it matter who
built
> the vending machine?
>
> The person who uses a tool is repsonsible for the outcome.
Of course, this is NOT always true. If the tool does not work as intended, or fails, the tool maker may be liable for any damage.
> It is irrelevent
> whether you built the tool your self, paid someone else to build the tool
for
> you, or chose a pre-made tool that is available on the market.
All of these things are relevant to the issue, and can be used to show, or not show, scienter.
> Three identical
> triplets aquiring three identical tools by each of the three methods just
> described are legally indistinguishable when they use those tools in
identical
> manner.
Nope. In most circumstances, the intent, knowledge, and actions of each triplet is an important consideration. Plus, one tool may be defective, but not the others. Or one might be missing an instruction manual, or have an improper instruction manual. This is very fact intensive, as are most contract issues.
> A web server does not obey "commands" from outside users. Computer
security
> built in to every OS in widespread use guarantees that only commands from
an
> authenticated user will be run.
Of course, this is not true by default. It is pretty easy to set up a web server that requires no authentication. In fact, most web servers default to this position. The fact that some operating systems allow for authentication doesn't put the burden on the user to implement it. If somebody goes to my machine and plants a worm, even if I didn't protect the machine, I can go after that person for destruction of property (if I can find them). Leaving a machine unprotected is not a "license" for others to use it, and neither is copyrighted material.
In the case of a web server, those commands
> involved accepting "input" data over the network. That input data may be a
GET
> "request". It is flat wrong to call it a command.
>
> This is much differnet than when you rent a car. When you rent a car, the
terms
> of your contract authorize you to take command of the vehicle.
>
> I'll cite the case I have before that supports the proposition that a
software
> program can negotiate a contract on its controller's behalf. In Hotmail v.
Van$
> Money Pie, the court found that VMP breached a contract with Hotmail. The
> contract in question was formed by Hotmail's server when VMP created the
> accounts. The court found "that Hotmail complied with the conditions of
the
> contract except those from which its performance was excused". The court's
> analysis did not turn on whether Hotmail wrote the software.
>
> Now it's your turn to cite something. anything.
>
> Every time I cite the law you make unsubstantiated assertions that the law
I
> cited doesn't apply. To my recollection, you have never once provided any
> references. I've cited the Hotmail decision. Step Saver, ProCD, various
Playboy
> copyright cases, and the UCC. Below I cite 4 cases directly on point to
this
> whole thread. You've cited nothing.
>
> > > 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.
>
> I consider the vending machine example obvious. It's hard to take anybody
> seriously who doesn't think it's creating a contract of sale. Are you
actually
> disputing this? Yes or No?
Again, this is a very stupid example. One example of a situation where a contract is made is not proof that there will ALWAYS be a contract. In fact, the only reason that a contract was made is because the user VOLUNTARILY and KNOWINGLY entered his money and chose a beverage. Without that intent, no contract exists. Further, the user HIMESELF entered the money. This was not a behind-the-scenes transaction between computers. This is no evidence to support your crazy notion that the actions of software can be used to provide proof of a license.
>
> > 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.
>
> You seem to just not get the idea that we are talking about
"authorization".
> There are no authorized infringing acts, that is an oxymoron.
You mix up "authorization" with "capability". The fact that software can do something, and that it is not blocked from doing it, is not proof that the doing is authorized. And this is the last I will say on this subject. It is getting silly to argue the law with somebody who refused to provide ANY evidence of his position, and raising irrelevant analogies.
-Bodi Received on Mon Aug 25 2003 - 23:30:04 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:50 GMT