I'd like to ask Mr. Taylor for his opinion on a hypothetical, if I may.
(Please accept my apologies for any incorrect or unclear use of
terminology; I'm not as technologically sophisticated as some on the
list. I hope you can still see what I'm getting at.)
HYPO: A new software program becomes available by which a website creator can easily incorporate soundfiles in websites. Assume that websites created with this software allow all soundfiles to be copied by anyone viewing the website, but the software has other features that make it popular. Parties A, B, C and D use the software to add soundfiles to their websites.
Now, assume that the software company releases an updated version that allows website creators to specify that their soundfiles can't be copied.
Party A isn't aware that the new version has been released. Party B is aware of it, but hasn't bothered to install and use it. Party C downloads the new version and attempts to use it to disable copying, but does it wrong, so soundfiles can still be copied. Party D downloads and uses the new version correctly, and changes the website's settings to prevent copying.
Party E visits the websites created by A, B, C and D, and copies a soundfile from each of them (although this is more difficult in the case of D).
Is E an infringer or a licensee with respect to A, B, C and D? (Assume no fair use.) Thanks.
I'm also wondering what your position is with regard to non-Internet copy protection. For example, several technology companies claim to be able to manufacture CD's that can't be copied to a computer. In actuality, this copy protection works quite poorly: some CD players won't play the CD's at all, some allow them to be played and copied, and only some allow them to be played but not copied.
If I offer for sale an album without copy protection because I would like it to be heard by everyone, including those whose CD players won't play copy-protected CD's, have I granted all buyers a license to copy, since technology to prevent copying (by at least some buyers) was available but I didn't use it?
I'm afraid I don't know enough about CD players to know whether there's any "communication" between the CD and the player, such as could arguably constitute a license, but I'm willing to learn if anyone would care to discuss this.
Thea
>>> bryan_w_taylor[_at_]yahoo.com 08/25/03 11:15AM >>>
> 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.
If you set up a machine to engage in contract negotiation, do you agree
that
you are bound by the resulting contract?
Are vending machine operators able to sue people who buy candy for theft?
Are banks able to sue people who transfer money using an ATM for bank fraud?
Is Hotmail bound by the terms of its end user contract when someone
signs up
over the web?
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.
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. 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. 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.
> >
> > 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.
Huh? That would be your position where the tool provider (car rental
company,
here) is liable. My position is that the tool user is liable for his
use of the
tool.
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. 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?
> 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.
> > 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.
That is true. The copyright act preempts certain otherwise valid state
laws
from transferring copyright ownership. Aside from this completely
irrelevant
special point, the copyright act defers to the UCC to govern contract
formation. I've cited Step Saver and ProCD for the proposition that a
UCC
analysis is done to identify the existence and terms of a copyright
licence.
Do you dispute that the UCC is the governing law regarding whether a
licence
exists?
> > 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.
Baffling. The server was set up to execute the HTTP protocol. This
means what
the HTTP spec says it means in section 1.4.
"The HTTP protocol is a request/response protocol. A client sends a
request to
the server in the form of a request method, URI, and protocol version,
followed
by a MIME-like message containing request modifiers, client
information, and
possible body content over a connection with a server. The server
responds with
a status line, including the message's protocol version and a success
or error
code, followed by a MIME-like message containing server information,
entity
metainformation, and possible entity-body content."
Is this paragraph not an accurate factual description of HTTP? Yes or No.
Is a request/response dialogue not a "negotation" for something?
Is a "request" not an attempt to seek authority for that which is requested?
Does an affirmative response (eg "OK") not communicate unambigous
granting of
authority for that which was requested?
> >
> > 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?
If by "use" you mean link, then I'll provide four examples, although
none say
that the link's legality is contingent on having actually been served
the
image, but rather all say it is legal regardless.
""[H]yperlinking does not itself involve a violation of the Copyright
Act
(whatever it may do for other claims) since no copying is involved."
Tickmaster v Tickets.com
Similar results in EF Cultural Travel BV, et al. v. Zefer Corporation
(website
bears burden to make additional explicit prohibition on "scrapers",
given that
it serves up content already)
Similar results in the cases PCM v. Kranten.com (Netherlands) and
Verlagsruppe
Holtzbrinck v Paperboy.de (German), each of which went to the Supreme
Court of
their respective countries and upheld deep linking as non-infringing.
And yes, I could reasonably ask you to provide citation for the
opposite
position. If any of the above cases had dissents, that would be one
source.
> Your claim that it is an explicity licensne is ludicrous.
If the law grants person A the exclusive right to authorize XYZ,
consider the
following dialouge and situation:
person B: hey, person A, can I do XYZ
person A: OK
<<person A and person B cooperate to do XYZ>>
Are you really going to tell me that person B didn't have authorization
to do
XYZ?
If you go back and read the HTTP transaction log I posted of my image
download
from McDonalds, it pretty much contains syntax to cover all that I am
claiming
is authorized.
> The only "meaning" is that you requested a copy be made, and a copy
was
> made.
That is meaning enough -- it means this is an authorized copy, not an
pirated
one.
> There is nothing at all in the HTML that says, one way or another,
> that the copy was authorized.
Of course there isn't anything in the HTML. You are describing the job
of the
HTTP, not HTML. HTML defines presentation. But the name of the specific
HTML
used is sent as part of the request. Look at the first line of the
response
header from McDonalds.com that I posted. It says "OK".
Are you arguing that "OK" doesn't mean that it's OK?
Or if it does mean it's OK, are you arguing it still isn't "authorized"?
> > 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.
Well, I've named 4 cases that support my position. You've named none.
The one
that supported your position (Kelly v Arriba) was just vacated.
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