Date: Sat, 5 Feb 2005 18:56:21 -0800 From: Sandy Rutherford <sandy@krvarr.bc.ca> To: freebsd-questions@freebsd.org Subject: Re: favor Message-ID: <16901.34645.144852.476246@szamoca.krvarr.bc.ca> In-Reply-To: <1258430214.20050206025603@wanadoo.fr> 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> <1258430214.20050206025603@wanadoo.fr>
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>>>>> On Sun, 6 Feb 2005 02:56:03 +0100, >>>>> Anthony Atkielski <atkielski.anthony@wanadoo.fr> said: > 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. Hold on a second. Shared P-to-P directories certainly are indexed and Finckenstein knew this. In his view, having a reasonable expectation that a site would be indexed or linked to does _not_ constitute a positive act. 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). True, but it is not the person who puts the content on a website that is doing the copying. It is the person who downloads it. If I go into a library, borrow a book, and then copy it, it is I who have (possibly) infringed on copyright and not the library. I say possibly, because I am not even sure that this is a copyright violation in Canada. I believe that Canadian copyright is tied more to the act of distribution, than to the act of copying. If I own a CD, then it is legal for me to make as many copies as I wish, as long as I don't distribute them. 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. He certainly did understand the issue, at least as it relates to Canadian copyright law. (He is a justice of the Federal Court of Appeals, after all. He does know his law.) It is important to remember that copyright and patent rights are not "God-given rights". Like all jurisprudence, they are man-made for purely pragmatic reasons. It is in the best interests of society that creativity be fostered. Creativity is best fostered by protecting intellectual property rights, but not doing so in a manner which overly restricts the free-flow of ideas. A delicate balance must be struck. Looking for ways to adapt the current copyright and patent laws, which were largely devised at the time of the industrial revolution, to the computer age is basically an exercise in pounding a square peg through a round hole. Finckenstein recognized that these issues should not be decided in the courts, because they are primarily not legal issues. They are matters of social policy, which ultimately should be decided in Parliament. By taking such a restrictive view of how current copyright laws extend to electronic publication, Finckenstein was challenging Parliament to throw out the current laws and rethink the entire matter from scratch. In my view, this is a good approach. Sandy
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