Date: Sun, 6 Feb 2005 02:56:03 +0100 From: Anthony Atkielski <atkielski.anthony@wanadoo.fr> To: freebsd-questions@freebsd.org Subject: Re: favor Message-ID: <1258430214.20050206025603@wanadoo.fr> In-Reply-To: <16901.23792.668233.856876@szamoca.krvarr.bc.ca> References: <4203F451.9070307@cis.strath.ac.uk> <200502050030.39812.m.hauber@mchsi.com> <452211071.20050205114332@wanadoo.fr> <16901.23792.668233.856876@szamoca.krvarr.bc.ca>
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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. 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. And in practical terms, nobody sets up archives of forums and then keeps them out of the search engines and unlinked to by any other site. There are very few useful purposes for Web sites that nobody links to. I use them to provide photo albums to clients in a semi-private way, though: there is no password protection so the client doesn't get confused trying to access the album, but since the URL is not known to any other site and is not indexed or pointed to by anyone, it's still fairly confidential (someone would have to guess the URL to reach the album). 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. Libraries loan books and in so doing move content from one place to another; they do not _copy_ content. 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. SR> Please don't ask me to defend Finckenstein's ruling. There are SR> aspects of it with which I both agree and disagree. My point is SR> simply that there are a lot of grand statements being made in this SR> thread, when in fact many of the issues are quite subtle. Then it is best to err on the side of prudence. -- Anthony
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