in reality, this is the only way it can work. But you are forgetting that the ISP can re-post the material after it recieves a sworn affidavit from the alleged infringer that he is not infringing. All this does is allow the ISP to stay out of the dog fight between two parties. To have it your way, every ISP would have to spend resources to conduct an investigation into the merits of the claims. And what if they are wrong? They get sued. Then how many ISP's would go to thr trouble. This is a working situation.
Your analogy stinks because it gets copyright law wrong.
1.A copyright is an original expression in a fixed tangible medium. Copyright law provides the right of the owner to control copying and display. Fine. How do the Cubs get a copyright to control who can view their ballgames?
2. The plaintiff has the RIGHT to determine HOW and WHERE his work is displayed. Right or wrong, that's the law. So what if the plaintiff didn't attempt to remove the picture. It doesn't make sense.
Actually, to be picky, Arriba WAS held to have infringed Kelly's copyright, but it was a transformative fair use.
Secondly, I'm not so sure that non-commercial material is less protectable, if I understand your argument.
1. the purpose and character of the use - the court didn't discuss the commerical aspects of KElly's work here, but rather that users wouldn't have to go to his site if they could find them on Arriba. Also, Arriba didn't add any new expression to Kelly's work, so it wasn't transformative.
2. the nature of the copyrighted work - once again, the court didn't discuss commerce, but rather that the images were wholly copyrighted and used in entirity.
3. the amount and substantiality of the portion used - here the court said that since they used the entire portion, there was no fair use here. They didn't mention commerce.
4. the effect of the use upon the potential market for or value of the copyrighted work. Here, the court did discuss the commerical aspect, but they also didn't like the fact that there was no need to go to Kelly's site. They could find that non-commercial websites still need people to go to their site - maybe for charity pitches, etc...
Even a non-commercial owner would probably win 3.5 out of 4 in the fair use test.
If you look at the opinion, Arriba got busted for unauthorized public display. The court said that "by allowing the public to view Kelly's copyrighted works while visiting Arriba's website, Arriba created a public display of Kelly's works." I think that a popup is still a display caused by the infringer.
It might help to actually read the opinion first. There are several enumerated protections afforded to copyright owners, of which the right to control copying is only one. Public display is another, and the court held that the inline link was a form of unauthorized public display.
There are many areas of law where linking can get you into ttrouble. Defamation, trademark, and copyright law is all involved with linking law. Here is a good quick link to the discussion: http://www.nolo.com/lawcenter/ency/article.cfm/obj ectID/C13F7E6B-B05E-43DF-80D62B635DF9DD9F
I also disagree with the lawyer's assessment of the holding. It will only do away with inline linking, which I don't think a lot of people have a problem with that on this thread due to bandwidth costs, etc... You can still link without permission, but then there are trademark issues of confusion, etc... But I think it will only impact inline links.
I don't think that analogy is correct. It is more like putting goods in your store window (Kelly's website), and then suing someone for taking a photo of the display (unauthorized copying), and then using it to sell the same products in your catalog (so now fair use). That is the thumbnail argument.
The inline linking arguement was that there was no copying, but there was unauthorized public display. The same analogy would be a movie director likes your window display with the products, and uses your window as a backdrop to a scene. That would be an unauthorized display.
Assume that website.com lifts an image of a copyrighted 100 x 100.ico from another website, and hosts the image on its site in its full size. However, they read this ruling and they decide to size the html to render the image as a really tiny thumbnail at 50 x 50. Then Google or Arriba scrawls the website.com server, and creates a link to the stolen image and displays the image 100 x 105 pixels. They have displayed the image without transformation and without authorization. And website.com is is laible for infringement because they copied the image, but according to the ruling, their use was a fiar use because it was transformative. I know it is theoretical, but it illustrates the application of this ruling.
The court stressed the point that the use of the thumbnails was a fiar use, because the thumnail was transformative. This means that the image was substantially transformed. The court thought it was very important that the image, if uncreased in size, you pixelate and render the output inferior and not competitive to the original.
System Caching of Copyrighted Materials
17 U.S.C. 512(b) (1998)
This safe harbor seeks to allow service providers some ability to "cache," or temporarily store, popular materials in order to improve performance for end users and to reduce network traffic. At the same time it protects the ability of the originator of the material to set limits on the frequency or mode of caching.
This defense has several specific requirements. Among them, the OSP must transmit the material without modifying its content; comply with rules concerning refreshing, reloading or other updating of the cached material; and limit access to only those users who have met the conditions placed on the material by the originator e.g., passwords or fees.
That is really an outdated cliche. You are arguing that the law shouldn't be enforced because there is a clever technical response. Let's not enforce car theft because people can install Lo-Jack. Cool.
You're wrong. The court states that there was no copying for the inline linking, but that it violated another copyright protection - the right to contol public display. they displayed the full-sized images within their frames.
It appears from the motions (I have read both) that Elcomsoft is arguing on grounds of subject matter jurisdiciton and DMCA unconstitutionality based on vagueness.
The jurisdiction grounds is pretty tenuous because no court in the land has ever ceded authority over an Internet case because the transaction occured in "cyberspace." That was a tough arguement, especially since the company entered into a contract with a WA firm.
But the constitutional grounds seems like a good arguement. The distinction seems to come down to the subsection of the DMCA. Imagine a copyrighted paper locked in a box. The DMCA prohibits breaking the lock to the box without permssion. The next section bans the creation of tools used to break into the lock. The third section appears to ban the USES of the copyrighted material after it has been unlocked. However, since there are numerous FAIR USES of the work, they can't ban tools that are used to infringe on the work AFTER it has been out of the box. That is unconstitutionally vague, Elcomsoft is arguing. If it is vague, then people can't know if they are going to violate the law. Under the constitution, laws have to be specific, to give a person of normal intelligence notice that he might be breaking the law. Elcomsoft is arguiung that the third subsection of 1201 is too vague. It is a great arguement.
I posted last week the jurisdiction motions - that they didn't violate Russian law. Check YRO - some reason, that motion wasn't put on the front/. section, even though the jurisdiction arguement could have been strong, as well. But the bottom line, is that Elcomsoft was busted for "traffiking" of the software in the US, and that if one considers that they entered into a contract with the WA distributor and sent the digital file to the US server, that is traffiking, and the crime was committed here, not Russia. This is an important point that the prosecution is making. However, the "vagueness" arguement is really novel and well written.
Actually, if you look at the transactions invovled in this case, they did "do" business in the US b/c they entered into a contract with a Washington state software distributor - CC processor.
So let's see, its Elcomsoft's fault for defending itself because it got dragged into America court doing the honorable thing and defending its employee? Elcomsoft is not the bad guy here.
With the age of consent laws, they get you through the Commerce Clause, which means that if you use any mode of transportation that is involeved in interstate or foriegn commerce, and you form the intent in the US to go to Spain and have sex with a minor, then they will apply the law to you. Unlike the DMCA, Congress explicitly provides US jurisdiction over those cases.
Here is an article that non-US/. readers might find interesting at http://www.denmarket.dk/cyberlaw/non-us.htm - it explains the Elcomsoft federal indictment, and poses some specific suggestions on how non-US software developers can avoid triggering US jurisdiction in "cyberspace."
The area of internet jurisdiction is very complex and often confused. When it comes to defamation, look at a case called Calder v. Jones, 465 US 783. Basically, the court found that California had the jurisdiction to hale Floridians into Cal because their defamation against Shirley Jones was an intentional act, that was aimed at California and they knew their comments were likely to cause harm in California. Several courts have applied Calder to the Internet, where the "effects" of the defamation is where the jurisdiction can also be found.
I was authorized to post this here by someone who has been following the Napster issue a lot more closely than many of the fellow Slashdot posters.
-----
Whining, uninformed, half-awake mental masturbation.
If they know so much, let them build something, and let them see their dream stomped by evil moneyed forces, and let them struggle to forge a way to retain the viability of their dream in some form despite a chorus of condemnation from entrenched businessmen; loopy misconceptions, engendered by 14 year old girls and telescoped by irresponsible journalists, that the technological ability to do something transforms it into a Constitutional right; and horrendously short-sighted rulings of law from in injudicious judges prone to shooting of their mouths from the benches.
Then let them turn around and hear hopelessly unrealistic critical blather from mere bystanders who wouldn't have been to make it work in the first place.
All this talk about Napster being irrelevant because there are decentralized services out there is like saying pharmacies are irrelevant because the black market exists. I'm ALL FOR subversion of the copyright industries through peer to peer technology, but I'm nauseated by people who rush headlong into personification of the saying "opinions are like assholes, everyone has one," and most of them aren't worth the paper they are wiped/written on.
These people should do some thinking about the difference between the business world and the world of comic book super heroes, who always win uncompromisingly, before they squirt out then next bit of drivel, the fools.
Slashdot Mirror
in reality, this is the only way it can work. But you are forgetting that the ISP can re-post the material after it recieves a sworn affidavit from the alleged infringer that he is not infringing. All this does is allow the ISP to stay out of the dog fight between two parties. To have it your way, every ISP would have to spend resources to conduct an investigation into the merits of the claims. And what if they are wrong? They get sued. Then how many ISP's would go to thr trouble. This is a working situation.
1.A copyright is an original expression in a fixed tangible medium. Copyright law provides the right of the owner to control copying and display. Fine. How do the Cubs get a copyright to control who can view their ballgames?
2. The plaintiff has the RIGHT to determine HOW and WHERE his work is displayed. Right or wrong, that's the law. So what if the plaintiff didn't attempt to remove the picture. It doesn't make sense.
Secondly, I'm not so sure that non-commercial material is less protectable, if I understand your argument.
1. the purpose and character of the use - the court didn't discuss the commerical aspects of KElly's work here, but rather that users wouldn't have to go to his site if they could find them on Arriba. Also, Arriba didn't add any new expression to Kelly's work, so it wasn't transformative.
2. the nature of the copyrighted work - once again, the court didn't discuss commerce, but rather that the images were wholly copyrighted and used in entirity.
3. the amount and substantiality of the portion used - here the court said that since they used the entire portion, there was no fair use here. They didn't mention commerce.
4. the effect of the use upon the potential market for or value of the copyrighted work. Here, the court did discuss the commerical aspect, but they also didn't like the fact that there was no need to go to Kelly's site. They could find that non-commercial websites still need people to go to their site - maybe for charity pitches, etc...
Even a non-commercial owner would probably win 3.5 out of 4 in the fair use test.
If you look at the opinion, Arriba got busted for unauthorized public display. The court said that "by allowing the public to view Kelly's copyrighted works while visiting Arriba's website, Arriba created a public display of Kelly's works." I think that a popup is still a display caused by the infringer.
It might help to actually read the opinion first. There are several enumerated protections afforded to copyright owners, of which the right to control copying is only one. Public display is another, and the court held that the inline link was a form of unauthorized public display.
There are many areas of law where linking can get you into ttrouble. Defamation, trademark, and copyright law is all involved with linking law. Here is a good quick link to the discussion: http://www.nolo.com/lawcenter/ency/article.cfm/obj ectID/C13F7E6B-B05E-43DF-80D62B635DF9DD9F
I also disagree with the lawyer's assessment of the holding. It will only do away with inline linking, which I don't think a lot of people have a problem with that on this thread due to bandwidth costs, etc... You can still link without permission, but then there are trademark issues of confusion, etc... But I think it will only impact inline links.
The inline linking arguement was that there was no copying, but there was unauthorized public display. The same analogy would be a movie director likes your window display with the products, and uses your window as a backdrop to a scene. That would be an unauthorized display.
Assume that website.com lifts an image of a copyrighted 100 x 100 .ico from another website, and hosts the image on its site in its full size. However, they read this ruling and they decide to size the html to render the image as a really tiny thumbnail at 50 x 50. Then Google or Arriba scrawls the website.com server, and creates a link to the stolen image and displays the image 100 x 105 pixels. They have displayed the image without transformation and without authorization. And website.com is is laible for infringement because they copied the image, but according to the ruling, their use was a fiar use because it was transformative. I know it is theoretical, but it illustrates the application of this ruling.
The court stressed the point that the use of the thumbnails was a fiar use, because the thumnail was transformative. This means that the image was substantially transformed. The court thought it was very important that the image, if uncreased in size, you pixelate and render the output inferior and not competitive to the original.
System Caching of Copyrighted Materials
17 U.S.C. 512(b) (1998)
This safe harbor seeks to allow service providers some ability to "cache," or temporarily store, popular materials in order to improve performance for end users and to reduce network traffic. At the same time it protects the ability of the originator of the material to set limits on the frequency or mode of caching.
This defense has several specific requirements. Among them, the OSP must transmit the material without modifying its content; comply with rules concerning refreshing, reloading or other updating of the cached material; and limit access to only those users who have met the conditions placed on the material by the originator e.g., passwords or fees.
That is really an outdated cliche. You are arguing that the law shouldn't be enforced because there is a clever technical response. Let's not enforce car theft because people can install Lo-Jack. Cool.
You're wrong. The court states that there was no copying for the inline linking, but that it violated another copyright protection - the right to contol public display. they displayed the full-sized images within their frames.
The jurisdiction grounds is pretty tenuous because no court in the land has ever ceded authority over an Internet case because the transaction occured in "cyberspace." That was a tough arguement, especially since the company entered into a contract with a WA firm.
But the constitutional grounds seems like a good arguement. The distinction seems to come down to the subsection of the DMCA. Imagine a copyrighted paper locked in a box. The DMCA prohibits breaking the lock to the box without permssion. The next section bans the creation of tools used to break into the lock. The third section appears to ban the USES of the copyrighted material after it has been unlocked. However, since there are numerous FAIR USES of the work, they can't ban tools that are used to infringe on the work AFTER it has been out of the box. That is unconstitutionally vague, Elcomsoft is arguing. If it is vague, then people can't know if they are going to violate the law. Under the constitution, laws have to be specific, to give a person of normal intelligence notice that he might be breaking the law. Elcomsoft is arguiung that the third subsection of 1201 is too vague. It is a great arguement.
I posted last week the jurisdiction motions - that they didn't violate Russian law. Check YRO - some reason, that motion wasn't put on the front /. section, even though the jurisdiction arguement could have been strong, as well. But the bottom line, is that Elcomsoft was busted for "traffiking" of the software in the US, and that if one considers that they entered into a contract with the WA distributor and sent the digital file to the US server, that is traffiking, and the crime was committed here, not Russia. This is an important point that the prosecution is making. However, the "vagueness" arguement is really novel and well written.
Actually, if you look at the transactions invovled in this case, they did "do" business in the US b/c they entered into a contract with a Washington state software distributor - CC processor.
So let's see, its Elcomsoft's fault for defending itself because it got dragged into America court doing the honorable thing and defending its employee? Elcomsoft is not the bad guy here.
With the age of consent laws, they get you through the Commerce Clause, which means that if you use any mode of transportation that is involeved in interstate or foriegn commerce, and you form the intent in the US to go to Spain and have sex with a minor, then they will apply the law to you. Unlike the DMCA, Congress explicitly provides US jurisdiction over those cases.
Here is an article that non-US /. readers might find interesting at http://www.denmarket.dk/cyberlaw/non-us.htm - it explains the Elcomsoft federal indictment, and poses some specific suggestions on how non-US software developers can avoid triggering US jurisdiction in "cyberspace."
The area of internet jurisdiction is very complex and often confused. When it comes to defamation, look at a case called Calder v. Jones, 465 US 783. Basically, the court found that California had the jurisdiction to hale Floridians into Cal because their defamation against Shirley Jones was an intentional act, that was aimed at California and they knew their comments were likely to cause harm in California. Several courts have applied Calder to the Internet, where the "effects" of the defamation is where the jurisdiction can also be found.
I was authorized to post this here by someone who has been following the Napster issue a lot more closely than many of the fellow Slashdot posters. ----- Whining, uninformed, half-awake mental masturbation. If they know so much, let them build something, and let them see their dream stomped by evil moneyed forces, and let them struggle to forge a way to retain the viability of their dream in some form despite a chorus of condemnation from entrenched businessmen; loopy misconceptions, engendered by 14 year old girls and telescoped by irresponsible journalists, that the technological ability to do something transforms it into a Constitutional right; and horrendously short-sighted rulings of law from in injudicious judges prone to shooting of their mouths from the benches. Then let them turn around and hear hopelessly unrealistic critical blather from mere bystanders who wouldn't have been to make it work in the first place. All this talk about Napster being irrelevant because there are decentralized services out there is like saying pharmacies are irrelevant because the black market exists. I'm ALL FOR subversion of the copyright industries through peer to peer technology, but I'm nauseated by people who rush headlong into personification of the saying "opinions are like assholes, everyone has one," and most of them aren't worth the paper they are wiped/written on. These people should do some thinking about the difference between the business world and the world of comic book super heroes, who always win uncompromisingly, before they squirt out then next bit of drivel, the fools.