Another example in the ATM discussion below is that
banks used to charge overdraft fees even if the
overdraft was approved by the ATM. Ask me how I know!
I assume this is less common now that ATM's are better
connected, but I am not sure.
Keith
- "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:
>
> ----- Original Message -----
> From: "Bryan Taylor" <bryan_w_taylor[_at_]yahoo.com>
> To: "CNI-COPYRIGHT -- Copyright & Intellectual
> Property"
> <CNI-COPYRIGHT[_at_]cni.org>
> Sent: Monday, August 25, 2003 11:15 AM
> Subject: [CNI-(C)] Re: Kelly v. Arriba Soft (new
> opinion from 9thCir.)
>
>
> >
> > --- "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
=== message truncated ===
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Received on Tue Aug 26 2003 - 00:14:35 GMT