Date: Sun, 6 Feb 2005 01:55:46 -0800 From: "Ted Mittelstaedt" <tedm@toybox.placo.com> To: <freebsd-questions@freebsd.org> Subject: RE: favor Message-ID: <LOBBIFDAGNMAMLGJJCKNCEEFFAAA.tedm@toybox.placo.com> In-Reply-To: <1258430214.20050206025603@wanadoo.fr>
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> -----Original Message----- > From: owner-freebsd-questions@freebsd.org > [mailto:owner-freebsd-questions@freebsd.org]On Behalf Of Anthony > Atkielski > Sent: Saturday, February 05, 2005 5:56 PM > To: freebsd-questions@freebsd.org > Subject: Re: favor > > > Sandy Rutherford writes: > > SR> This is not so clear. In a March 2004 decision regarding > P-to-P music > SR> sharing, Justice von Finckenstein of the Federal Court of > Canada ruled > SR> that: > SR> > SR> The mere fact of placing a copy on a shared directory > in a computer > SR> where that copy can be accessed via a P2P service does > not amount to > SR> distribution. Before it constitutes distribution, there > must be a > SR> positive act by the owner of the shared directory, such > as sending out > SR> the copies or advertising that they are available for copying. > > Or allowing a Web site to be indexed by a search engine. > > I'll grant that a site that is public but not linked to or indexed by > anyone could be assimilated with a non-public venue. > This is a bit of twisting of the definition of "site that is public" in my opinion. Suppose I setup a webserver at example.com that will only respond to http://www.example.com/12345678qwerty/ and will ignore any other HTTP requests (such as to www.example.com, www.example.com/index.html, etc. I think it would be incredibly difficult to argue that this is a public server in any way. The trailing /12345678qwerty/ is in effect an access password to the material on the website. Just because there's no real .htaccess or some such real HTTP password authentication on the site, doesen't make it a public site. An access password is a password, regardless of whether delivered as a trailing URL or in an HTTP-auth request. > SR> A parallel here would be that placing copyright material > on a public > SR> website would not amount to distribution and therefore, not be a > SR> copyright infringement. Of course, it could be argued > that if Google > SR> started linking to it, that would constitute advertisement. > > Absolutely. > > SR> However, it is hard to see that as the prerequisite "positive act" > SR> on the part of the web site owner. It is more a positive act on > SR> Google's part. > > Google doesn't find out about sites through magic. Webmasters must > request that their sites be indexed. > Not true, Google also picks up sites from links off other sites. Someone could go out and setup a brand new domain example.com, this will be publically available via WHOIS, someone else finds it, tacks on "www" to the domain making www.example.com, finds a website there, links to it, and bang - google finds it. Fortunately, caselaw so far has held that there's no requirement to ask for permission to link, see: http://www.gigalaw.com/library/ticketmaster-tickets-2000-03-27.html So at least the courts aren't idiots yet, here. Of course, linking to a site that's password-protected, with a link that provides both the site URL and the password, might be considered a bit differently if the purpose of the link was to do something illegal (particularly if it fell under the DMCA restrictions) And of course including another person's site in a frameset of yours is definitely illegal without permission, as it is appropriating another person's copyrighted material for your own use, because doing this makes their material part of your site. > > SR> In his ruling, Finckenstein pointed out that there is a > parallel with > SR> public libraries. A public library does not infringe on copyright, > SR> simply by having books available for loan. > > That's not really a parallel. I agree with this, there is no parallel. The people that argue that downloading music from other people is "loaning" the material are fools. > Libraries loan books and in so > doing move > content from one place to another; they do not _copy_ content. Many times more than books - most large libraries have extensive CD and DVD collections. Ours for example gets first-run DVD's the same time that the local Blockbuster rental place does. Of course, there's a huge waiting list for them :-) > Infringement involves illegal reproduction in the vast > majority of cases > (on rare occasions it can involve unlicensed use, such as in > the case of > unlicensed performances of theatrical works). > > SR> Interestingly enough, Finckenstein also ruled that the act of > SR> downloading copyright material from a P-to-P server also does not > SR> infringe copyright. As far as I know, unlimited P-to-P sharing of > SR> copyright material is still fully legal in Canada. > > I'm not sure that Finckenstein fully understood the issue, then. > No, in this I think he did. It's one thing to download a copyrighted piece of material, the copyright violation occurs when the copyrighted piece is actually played on the destination computer, cd player, etc. because only at that instant of use does multiple copies of the material come into existence and the original creator is damaged. Consider the process of downloading, the copyrighted material passes through a great number of networks which (for a short time, of course) have copies of this material. For example assume the downloader is using a proxy server at an ISP. A copy of the material exists on that proxy server, and after the download is completed it may exist for weeks or months. If you based copyright violations purely on the idea of making it illegal for someone to posses a copy of the material, then the ISP that owns the proxy server now becomes liable. And of course, archival copies to backup media, etc. also become illegal. Now quite obviously everyone downloading illegal copies of music or whatnot are going to be listening to it, so it's kind of moot issue in filesharing networks in my opinion. But, the distinction exists and is important. You prosecute people for actually stealing the jewels, not for just having the lockpick, crowbar, skimask and gloves. Unfortunately too many content creators would rather have you believe that they are damaged just because you merely possess an illegal copy of their work, and not because you are actually using that illegal copy. There's a strong brainwashing campaign to make the assumption that possession = use. As in, I possess the atomic bomb, therefore I'm an evil child-killer because I quite obviously am going to use the atomic bomb. Uh, well, I guess the brainwashing campaign doesen't extend to armaments, at least not according to the current administration in the United States. ;-) With weapons, they got the reverse brainwashing campaign running (more bombs = more safe) Ted
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