RE: [dvd-discuss] An interesting case from 9th Circuit Appeals co urt

[Richard Hartman <hartman(at)onetouch.com>]

> -----Original Message-----
> From: Harold Eaton [mailto:haceaton@hotmail.com]
...
> Richard Hartman <hartman@onetouch.com> wrote:
> 
> > > I disagree that embedding is bad. If you don't want your
> > > images imbedded, then don't serve them to any page except
> > > your refering page.
> >
> >That is not in my power to accomplish.  My site is hosted
> >by a service and I do not have that level of control.  (btw:
> >how would you go about specifying that sort of restriction?)
> 
> Well, that's like not owning any real property and being upset
> if people walk by where you lie in the park - shouldn't those
> "disturbing the peace" laws protect you when sleeping during
> the day??

No ... I do own "real property" ... the photograph is mine,
even though I chose to make it available for display and contract
the services of a third party in order to do so.

The situation there is more akin to someone who donates a
painting to a public museam.  It is on display publically,
but the painting (and all interests therein) is still owned 
by a private party.  Just because it is on public display
doesn't mean somebody walking by can say "hey, this'd look
good in my living room" and take it.

This is what copyright law is all about: protecting the interests
of people who own the works so that they feel safe in publishing
them -- by definition an activity that involves making somethign 
publically (albiet not necessarily freely) available.


...
> > > It is very much like the window/curtain argument made earlier -
> > > if you don't want people looking through your window, provide
> > > a barrier.
> > >
> > >
> >
> >... and if you don't want people xeroxing the text book,
> >print it in black on red paper?
> 
> This is a very apt analogy! That's precisely what you do
> if you don't want someone xeroxing your book. 

Or perhaps you implement CSS?

Again, this is the whole purpose of copyright law: so that the owners
of a work do not have to provide their own "protection".  As part
of the social bargain the law says "you make this work available
and we'll ensure that you will be compensated against abuses".


>What you DON'T
> do is sue the person who says "There is a public library
> on 3rd street - it has the book you want indexed as Q103.456V,

That much is equivilant to a link ...

> you can check it out and take it to the Kinko's on Elm St;
> they have xerox machines there."  

... that is trafficking in bypass mechanisms, or information
about bypassing protections ... neither of which were at issue
when this conversation began, but if you insist that I must
provide my own protection instead of relying upon copyright
protection then it does become relevant ...

>Stopping someone from giving
> out that kind of information is a very slippery slope and is
> exactly the sort of think Kaplan did when he enjoined linking.

Kaplan was wrong.  My own posting said that linking was a valid 
operation.  You're going all over the park here.  None of what
you are saying addresses the line between linking (directing someone
to my content) and embedding (presenting my content as your
own even though it is technically hosted on my server) and copying
(presenting my content as your own but being "honest" enough to
do so by making a copy on your server).  Linking is fair game.
Copying is a violation of copyright.  Embedding is the gray
area ... but the _effect_ is the same as that of making a copy,
so I tend to go with the "if it walks like a duck" argument
that has recently been applied to put a halt to the whole "is a DVD a
program or a movie" thread.  

> The effort involved in accomplishing something is irrelevant;

Preciosely.  Since the appearance to the end user of 
an image fetched from my server but embedded in your page is no 
different that that of the same image in your page but physically
hosted on your server, I believe that both would be equally a
violation of my copyright.

> if you're giving out free sodas in the park, don't complain
> when someone tells a stranger "hey their handing out free
> sodas in the park over there". Don't hand out the damn sodas
> to non-paying customers if you expect them to pay!

Again, we are not talking about a link ("hey, go over there")

Even free publications have the right to determine their distribution.
There is a free publication in San Diego (The Weekly Reader).
I am not entitled to republish an article that appeared in The Reader
merely because they do not charge for it.  I also recall (vaguely) a 
case I heard of where some activists picked up and destroyed all copies 
of another free publication (I think this was in Berkeley).  Even 
though the publication was free, they were not entitled to do this
and (IIRC) they were held liable for vandalism against the publisher.

> 
> Tom's example of how to not serve images that are not
> refered from your site is a simple yet effective one,
> and you can do better (more secure) if you want.

... and yet, I should not have to ... that is the whole
point of copyright, is it not?  It would be really amusing
if the members of this list started arguing _for_ the use
of digital access control mechanisms ...

> 
> >The whole point of copyright law is that you don't _need_
> >barriers.  The whole existance of this list is due to the
> >misguided attempt of some people to _create_ barriers where
> >none are needed if existing law is enforced properly!
> 
> Sure, except copyright law is insane in this matter 

Insane or not, it is the law.  Lobby to change it and I will
have to deal with the new law.  Until then, please deal with
the law as it exists, not as you would recast it.

>- there
> is no requirement of notice, registration, etc. etc. to
> determine whether content is even copyrighted or not. 

That is because all content is under copyright from the 
time it is created.  The lack of notices or registration
may make it problematic to determine proper ownership
of the content in court ... but that is a separate issue.
You don't have to "determine" whether content is copyrighted
or not because it just _is_.

> It is a sad, sad, ruling equivalent in my estimation to the
> enjoining of hyperlinks by 2600;
> 
> At best the individual browsers who clicked on the refering
> hyperlinks have tresspassed; it's just easier to sue the
> newspaper than all those pesky fish enthusiasts.
> 

Ok, you're still talking about the ruling.  I've already
said that I think links are hunky-dory.  Can you please
address the further issue that I have been attempting to
raise?

-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi./sec ... not just a good idea, it's the LAW!