> > His piece of HTML does not include the image itself and therefore cannot
> > be a derivitive work, because it does not include any elements of
> > original expression owned by McDonalds.
>
> I didn't say that the HTML was a derivative work. The resulting image/web
> page displayed on a browser is a derivative work. The image was created via
> the HTML directions, and thus CONTRIBUTED to the infringement. Thus,
> contributory infringement.
I will certainly agree that ***IF*** my display of the page, on my single machine, is infringing, then the HTML author is a contributory infringer.
Will you admit that ***IF*** my display of the page, on my single machine, is NOT infringing, then the HTML author is a NOT a contributory infringer?
Please note that the Ticketmaster court did NOT find contributory infringement. To the extent that infringement exists, the web server supplying the picture is clearly also a contributory infringer, which is a reduction to the absurd proof that it is not infringment.
> And I did NOT say the HTML was infringing. In fact, I said quite the
> opposite.
>
> >
> > When **I** load the page, on my single machine, the image is copied and
> > displayed with the other content. I posted my licence. You can pretend
> > that it doesn't exist or bury your head in the sand and refuse to
> > read it, but aside from nihilistic denial of reality, the text of
> > what I posted says it is "OK"
> > for me to retrieve their image to my machine for use with
> > "http://www.amherstrugby.org/myart3.html".
>
> Your "license" is not a license by any definition of the word. A license
> must be intended by the licensor. In this case, it doubt it is, but only
> McDonald's can say for sure.
What is your position on what the face value meaning of the verbage in the HTTP log means, then? The objective meaning there-in is controlling. This is where the UCC says to look at "usage of trade" as part of a factual finding as to the meaning. In this case the documents which define the world wide web, including specs and RFC's will define that usage of trade.
It would be absurd to ask the party granting the license what it means post-hoc. I quoted the Hadady case to prove this point.
Nimmer speaks this way regarding enforceability of unilateral license terms: "A simple, unilateral statement by the copyright owner of the scope of its license suffices. See 3 Nimmer on Copyright, supra note 13, 10.03[A] (citing cases). Indeed, even an oral statement may be sufficient to grant a nonexclusive license." quoted from http://cyber.law.harvard.edu/ilaw/Contract/nimmer.html
The words "OK" in the response incorporate the request headers into a unilateral licence comprised of both request and response. Together they undeniably form "a simple unilateral statement" tracable to the copyright owner. The scope of the grants are found in the text (whether it is preserved or not -- just like an oral licence).
> > When I put "OK" and the URL in quotes, that is because it is a literal
> > quotation from the licence.
>
> Only by the most distorted and strained interpretation could this be
> considered true. Thus, cite a case that has so found. I doubt that you
> will find one.
Please stop pretending you care about citations: you never offer any yourself, and you don't appear to read the ones I do cite. No court that I am aware of has addressed my argument one way or the other. You should know this.
> Further, from a policy standpoint, your approach will fail. Copyright
> licesnes are not easily considered implied, and NOBODY is going to find an
> explicit license in a situation you discuss. There is no intent there. And
> it must be ACTUAL intent.
There is nothing "implied" here. I will bear the burden of grounding any grant I claim to have received in the explicit verbage of the HTTP transaction log, and I will do so mindful of the well accepted principle that when a licence exists, use beyond the scope of what is textually granted is presumed to be infringing. For example, serving a copy of the McDonald's image on my own web server is clearly not mentioned in the HTTP log, and is thus infringing.
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