Re: Re: Kelly v. Arriba Soft (new opinion from 9thCir.)

From: Keith Handley <kehandley89[_at_]alumni.amherst.edu>
Date: Tue, 26 Aug 2003 11:28:11 -0400


OK Bodi, I think we're getting close. I have streamlined the code and removed references to Linda's stuff, so it will work more clearly. Please look at

http://www.amherstrugby.org/myart3.html

Assume that everyone at McDonalds hates this web page. Assume that there is no parody defense, or fair use defense. Assume that I am trying to do harm to the McDonalds corporation with this. Assume that I have asked McDonalds for permission to create this page, but Ronald himself denied me, thrice. Assume that I proudly declare myself the owner of the page in open court. In other words, pretend you are a judge, and McDonalds is throwing the full force of their legal department at me.

Question 1: Tell me, Judge Bodi, am I (as creator and responsible party for the myart3 page) or anyone else infringing McDonalds's Copyright?

I'd rather you keep it as close to "yes" or "no" as possible.

Now, look at the following code (between the "<--" and "-->". 

<--
<html>
<body

style="background-image:
url(http://www.mcdonalds.com/countries/usa/whatsnew/mcgriddles/img/mcgriddles.jpg);"> <font size="+2" style="font-weight: bold; color: rgb(204, 51, 204);">This is my art. I hope you like it. This is all work of my own creation. I think it looks awesome.</font><br><br> <img style="width: 100px; height: 500px;" src="http://www.mcdonalds.com/countries/usa/food/img/90x90_nutritionfacts.jpg"><img style="width: 100px; height: 500px;"
src="http://www.mcdonalds.com/countries/usa/food/img/90x90_customize.jpg"><img src="http://www.bhs.berkeley.k12.ca.us/departments/Science/anatomy/anatomy97/digestive/images/vomit.jpeg" style="width: 419px; height: 250px;"><img style="width: 419px; height: 250px;"
src="http://www.mcdonalds.com/img/ww_splash.jpg"> <br> </body>
</html>
-->

Quoting "Robert F. Bodi" <lawlists[_at_]bodi.com>: Keith Handley (> >) wrote:
> > Is the HTML code below an infringement of Linda's copyright?
>
> If you copied is from her site, and the code is not purely functional (i.e.,
> it has some creative elements), then yes, it could be considered an
> infringement.

The only parts of the above code that could be said to be copied from the McDonalds site are the URLs of the images, for instance:

http://www.mcdonalds.com/countries/usa/whatsnew/mcgriddles/img/mcgriddles.jpg

Question 2: Is the above HTML code (as part of this email) an infringment, Judge Bodi, of McDonalds's copyrights? If so, who is infringing? Again, as "Yes" or "No" as possible.

Now, of course, I'm expecting that you will say "Yes" to Question 1 and "No" to question 2. Then, since they are the same thing (except one is being read by your eyes, while the other is being read by your browser) I will assert that you have violated the law of contradiction, and I expect you to shimmer out of existence. If you say "yes" to both, I will think that you have undergone a change of position, and if you say "no" to both, I will ask you to clarify the infringement in the code. I would make sure that you would feel the same if it were writ by hand on paper and distributed.

Thanks.

And to Linda, I think most of us recognize that it is courteous and may makes sense for many reasons to ask for your blessing before deep linking to one of your pictures, if your site still allowed it. But also realize that you have no idea where I got the exact URLs of the pictures I linked to. Perhaps I got them from somebody who (assuming your "I agree" button is legally enforceable) is violating his agreement. Sure, he violated your contract, but I am not violating your contract. Since (as Brian and I claim) my webpage is not doing any copying, my webpage is not infringing on your copyright. I may be impolite or even evil for doing it, but asserting that the web and copyright are what you think they should be does not make them so. You write as if the web and copyright were created for the express purpose of digital artists being able to make a living.

Keith Handley
kehandley89[_at_]alumni.amherst.edu Received on Tue Aug 26 2003 - 19:28:11 GMT

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