On 3/9/98, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> To the cni-copyright list: The following is a posting from a member
> of the list who wishes to remain anonymous. Any thoughts?
First, I hate anonymity, and, second, it's too long. However, inasmuch as it's a topic I get a kick out of, I'll respond to a few parts of Anonymous's transmission. :-)
> > "In a Web environment, or even similar file transfer environments,
> > the user is requesting the item and is in total control at all times.
> > The servers are quite passive: they simply respond to a request from
> > the user, and in fact, if the user cancels the transfer in the middle,
> > then the server will respond and shut down the connection.
So what? The server is there to transmit data that the user requests. The server will not transmit anything that it hasn't already decided it wants to transmit. I can't download all files from the server, just the ones it transmits. In fact, the user doesn't really request files. He requests a particular piece of HTML which is then translated by the user's browser and files are requested by the browser to compose the web page. The server, not purely passive, but recognizing valid requests, complies and transmits the data. For an entity that is so passive, it is interesting to note that far more data is transmitted to the user than is transmitted from the user. This is one of the reasons why those 56K modems work in the direction of server to user.
> > There is a Web technology called "push technology" which will send
> > information to a user without an explicit request from the user --
> > the user simply authorizes updates from the server, which then sends
> > the data when necessary or opportunity presents itself. But in
> > every other environment, it is the user action that drives the
> > transaction at every point.
The push stuff is not really that different from the pull. The difference is that there is a preconfiguration of what the user wants to pull from the servers, and the data is transmitted according to the user's wishes. As you say, without explicit requests.
> > I'll go out on a limb here...it is probably misleading to place the
> > action verb "transmit" into the discussion of a transfer of data from
> > server to user. It's better to use more neutral terms that reflect
> > the passivity of the server end and the cooperative action of the two
> > parties that is required for successful conclusion of the transfer.
And that word would be? I don't object to a different word. Although I'm arguing with what I feel is a slanted characterization, I don't disagree completely. Would you prefer transfer data rather than transmit?
> > It seems to me that "transmitting" has the overtone of directed data
> > to a passive recipient, and is a term derived from electronics, where
> > it's used to describe how radio/television works, or how power is
> > supplied to homes from a powerplant. You don't "transfer" a radio
> > show, or engage in a "transaction" with a television station; they
> > transmit, you receive. It's the user that is passive in that
> > circumstance, and the source that is active.
Certainly it is true that in the case of a broadcast signal, the signal is being broadcast and it is up to the user to tune in, whereas in the case of a computer server, nothing is sent unless it is requested and a synchronous connection is established.
> > In addition, it might be important to underscore that the server has
> > absolutely no intelligence about the transaction. All it knows is that
> > the user is authorized, and has used the right language (protocol, in
> > both the technical and normal sense) to request the file. The server
> > has no way to know if the user can actually make use of the file, e.g.,
> > read it, print it, or anything else."
Well, I don't know that I would go so far as to say it has *no* intelligence, but putting aside the notion of intelligence for a moment, how is that different from the transmission of a TV broadcast? The transmitter of a broadcast has now way of knowing whether the user can actually make use of the broadcast.
> > As an example, suppose that a university professor wishes to place
> > an audiovisual work on electronic reserve for use in a course that
> > he or she is teaching. If the interchange that occurred between the
> > library's server and the user was characterized as a transmission
> > for purposes of the copyright act, then it seems to me that 110(2)
> > controls. But the library server doesn't send or transmit the work
> > to the user; the user's computer goes to the library server, copies
> > the work and displays it on the user's screen. The user is in
> > control. It is just like the physical library - users come into
> > the library for the materials. To me it's a matter of how servers
> > are perceived; transmission suggests that servers are actively
> > doing something (and therefore, they would be the guilty ones) when
> > they are merely sitting there. The user is the active one.
Again, I think this mischaracterizes the transaction, overstates it anyway. When I, a person, go into a library, I can borrow materials. I am taking a lawful copy of a work, borrowing that unit, and returning it. No one is guilty of anything. It becomes more interesting if I go into the library, grab a book off the shelf, and photocopy part of the book. Perhaps now I am doing something unlawful, but the library isn't (put aside contributory infringement for the moment). But what if I go to the library, point to a book and ask the library to photocopy it for me? Who's guilty now? It seems to me that the last is what is happening with the web transmission. I am requesting a copy of something, and the server is giving it to me. The server isn't passive. It's responding to my request and *doing* something. It may be lawful, it may not, depends on *what* it is giving me.
> > I think the user computer accesses the server, makes a digital copy
> > and displays the copy on the user's screen - all at the instigation
> > of the user. The server has transmitted and displayed nothing.
This is the largest overstatement. The server makes a digital copy and transmits it to the user. It is indeed at the request of the user, but you make it sound as if the server had a gun to its head. It may have *displayed* nothing, but it sure as hell transmitted something that was then displayed.
> > I wish we could get one or both of these bills we are so
> > enthusiastically supporting to have a section explicitly taking
> > computer interactions out of that "transmit" definition and then
> > rephrase the parts of the bills using that language.
All my devil's advocate responses aside, I agree that the definition of transmit in section 101 is not very helpful for computer transmissions. It wasn't intended to be. Clearly, it was intended to talk about other kinds of transmissions of images and sounds. It was 1976 after all.
> Forwarded (With Permission) By:
>
> Tyler T. Ochoa
Replied to (with transmission) by:
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