Re: TotalNEWS & Derivative Works

Gabriel Wachob <gwachob[_at_]aimnet.com> wrote:
>
> Phil Stripling <philip[_at_]crl.com> wrote:
> >
> > So let's say TotalNews has a menu for Caribbean News in the left frame,
> > and the initial right frame is my picture, which is replaced when you
> > select from the menu? Is having my picture in a frame different? I'm
> > still sending the data, right? So let's say instead that they call up
> > my entire Caribbean page, with photos, every time their frameset with
> > the Caribbean news menu is called up by TotalNews's visitors.
>
> You have to be careful with your language. You say "they call up my
> entire Caribbean page".... They don't call it up, they simply tell your
> browser to call it up. Whether this technical distinction (which is a
> big big big one) should make a legal difference is where I think the
> courts and this discussion should be in part focusing on, at least for
> copyright.

I think this is where I bring out that old saying, "That's a distinction without a difference." Or "Guns don't kill people, postal workers do." If I program my computer to bring up your page, you think the courts will say, "Oh, well then, at least Phil didn't do it, it was his _computer_"? I'm not buying that either. That's like saying I didn't mean to run over that cop -- I was too drunk to form any intent. I didn't take the money judge, I simply told the teller to give it to me, and he did. Honest.

I'll try to be more careful with my language, though. Let's say that my entire Caribbean page is _displayed_, with photos, everytime someone views their framed page concerning Caribbean news. I don't care who calls it up. My page is displayed, and I think it's an infringement of my copyright.

> > Does it matter _what_ TotalNews chooses to incorporate in their page,
> > and does it matter if it's in a frame? From my perspective, no.
>
> Are you asking whether or not it matters if the content is framed?
> I guess the answer is that it probably does make a difference - If I
> just include an image (inline link) into my page, its a clearer case
> of at least public display infringement (based on what I perceive the
> implied license that most people on the web operate under), and
> probably derivative work infringement. The difficult is that the
> people who have made up the rules, in essence "webiquette" (which
> certain anti-social people don't follow), don't think of things in
> these rather artificial categories (ie display, derivative work,
> distribution rights).

I can't buy that either, Gabriel. You're right, my point was, Does it matter if the content is framed. I can't see that it makes a difference. The TotalNews Web page is a Web page, with or without frames. Frames are just another element of HTML. How can it be different if my page is displayed between anchor tags? How did these rules for frames get set up so suddenly and allow the public display of my page, when pre-frame, just direct inclusion, the public display was wrong? What happened overnight that changed the rules? Easier access to my material? Is that what controls the issue of infringement?

> It used to be that people came to a consensus about things and people
> who violated the consensus rules were shunned into behaving correctly.
> ahhh the good old days when people realized that the optimal path...

Well, there are good things about that, and there are bad things. That's a whole 'nother thread.

> > If they display my photo as a part of an unframed page, it's an
> > infringement.
>
> As I say before, probably. I think it depends on whether or not they the
> unframed or framed page is of YOUR making or of theirs.
>

SNIP
>
> I am not sure about this at all. I think this is at the crux of the
> Totalnews case. I think its way way way too muddy to be this
> conclusory. I think as a policy standpoint, it SHOULD NOT be
> copyright infringement - as for law, well my cynical side says it is
> up to whichever judge hears the case...

Wow.. My policy standpoint is that it _is_ an infringement, just as surely as the earlier example above. But we agree that the coin toss will be by a judge, and who can guess?

> > If my page is incorporated in one of their pages, framed or not, it
> > appears to me that they have infringed my exclusive right to control
> > the display of my page.
>
> But you have licensed it to be displayed on the web. You can't say that
> simply because someone views your page, they are violating your display
> right - you MUST have implicitly licensed the viewer - otherwise, what
> were you doing put the content up in the first place? The issue, as I
> think was discussed in other messages, is how far the implied license
> extends... Does it extend to displaying your page in a subframe?

I have licensed the viewer, not the framer, not the person who just incorporates my entire page into a page of his/her own. Have I said I see no difference? :-)

> > My page is not a part of theirs; it is my work, and they have no right
> > to incorporate my work as part of their page, whether they use frames
> > on their page or not.
>
> This is the derivative work argument which I think is strongest. however,
> as a policy matter, I think it should fail.

We're on opposite poles, here. As a matter of policy, therefore, since you're at Boalt Hall and I'm in San Mateo, I move we continue the discussion over our beverage of choices at a mutually convenient location.

Phil Stripling
philip[_at_]crl.com
:-> Received on Wed May 28 1997 - 16:29:27 GMT