Napster North --> Tariff 22 supreme court decision...

[Russell McOrmond]

At 21:58 -0400 02.05.05, Michael Geist wrote:

>available to others.  The quote you refer to is similarly limited -- 
>it refers to making personal copies, not to making those songs 
>available to others.


On Mon, 6 May 2002, Jason Young wrote:

> I think this is an artificial and unrealistic distinction.

  Jason Young makes a very very dangerous statement here.


> The people who upload the music are the same people who download the
> music and the works are the same works.

   I strongly believe this is wrong.

  I may be a user of a Napster/Freenet service, but *ONLY* provide from my 
disk non-infringing materials.  The fact that some third party has 
infringing information on their disks that they are sharing to others 
should not make me liable.

  A person downloading music from the net has no way of realistically
knowing whether the material they have downloaded is infringing or not.  
To believe that they do is to agree with the Music Distribution cartels
who do not wish to recognize the existence of artists which are not
members of (or employees of) their cartels. They do not want us to
recognize music which could be shared between individual citizens in a
"shareware like" non-infringing manner (IE: a license that explicitly
encourages private copying as advertising, but makes money on donations
from fans, concerts and royalties on traditional "public" broadcast
{radio, auditorium, etc} of the work).





  Only the person who posts a work (content provider) could have been
expected to know the origin and/or the license of the work.  The
assumption that a 'reader' , cache operator, linker, or intermediary
should know that a work is not legally being shared is an extremely
dangerous one - the acceptance of which is the acceptance of a police
state where everyone is defined as criminal until proven innocent.


  This is the same problem I have with the recent supreme court decision
on caches and links:  a crime that someone could have no way of
realistically avoiding should simply never exist.


  Caches are *NOT* under the control of the person running the cache, but
under the control of the content provider.  The ISP can be said to have an
option to have a cache at all, filter based on known file types, and
filter based on origin/destination.  These operators do not have the
ability to control based on anything that could be reasonably thought of
as relating to the question of whether the material is infringing or not -
only the content provider can be assumed to have that knowledge.

  If a content provider doesn't know how to do cache-control in a modern
Internet, then that is incompetency on their part and the risk should not
be transferred to a third party.


  With links, you may or may not know what exact information is hosted
there.  If I tell you about a friend, and that friend commits a crime,
should I go to jail for referencing them?  I think this interpretation of
law is extremely dangerous, both in cyberspace and in "real life".


  On the Internet the *only* person who should be liable for copyright
infringement is the person who "authorizes" material for publication, and
that is the content provider.  All liability for infringement, punishment,
royalties, etc should rest with the content provider.  Everyone else needs
to be assumed as innocent in the transaction of any knowledge of whether
the material that is shared constitutes copyright infringement.



>From Evans .J.A. , paragraph 126 onward, there is a focus on the word 
"necessary" in paragraph 2.4(1)(b) of the copyright act:

   2.4.(1) For the purposes of communication to the public by 
     telecommunication, 
        ...
   (b) a person whose _only act_ in respect of the communication of a work 
       or other subject-matter to the public consists of providing _the 
       means of telecommunication NECESSARY_ for another person to so 
       communicate the work or other subject-matter _does not communicate_ 
       that work or other subject-matter to the public; and



  The problem here is not the supreme court, which again should be
understood as a "semi-accurate microprocessor running code", but a major
flaw in the law (software) itself.  I consider much of this supreme court
judgment to be a "core dump" that we must now examine.  We must help the
legislators fix this bug for the new version of the copyright act.


  The problem is that the focus is on whether a given technology is 
necessary for communications, rather than focusing on who is in control of 
the technology and thus who authorizes the communication of any 
potentially infringing materials.


  In paragraph 137 it is suggested that "an end user can always set the 
browser on his or her computer to ensure that material requested from a 
Web site is transmitted directly from the original host server, and not 
the cache".
   This is false on a number of ISP's which do a port-80 redirect to a
cache.  An example is Sympatico where the user does *not* have the ability
to avoid the cache.  While I as an end user may dislike the fact that some
ISP's force port-80 to a proxy-cache, I do not believe that this action
should be legislated-away (the effect of suggesting that cache operators
should be held liable for royalties) but left as a decision in a free
market.



  Paragraph 138 suggests "the cache operator selects which material will
be cached, and programmed the computer to transmit it from the cache when
it is requested.", which is also greatly misleading.
  It is simply impossible for a cache operator to know if a given piece of
data is infringing or not.  A cache operator can theoretically control
*known* file types (IE: do not cache any audio/mpeg - AKA MP3 - files),
coming from *known* origins and/or destinations, but this is not itself a
legitimate criteria for determining infringement.  Only the content
provider has that knowledge, and it is also that person who has control of
the cache:  it is a matter of lack of technical knowledge on the part of a
site maintainer if they claim otherwise.  We should not be providing legal
protection for content providers who lack adequate technical 
knowledge to publish potentially infringing information.



  Paragraph 168 contains "Unlike a mirror site, a cache can be operated
without the knowledge or consent of the content provider, although the
content provider can prevent caching by inserting the appropriate data in
the Web page", which is likely the source of the misleading and incorrect
decision.
  A content provider must, in a modern Internet, *assume* that multiple
levels of caches always exist.  There may be caches on their hosting ISP,
potential 3-rd party intermediaries, the end-users IAP, and the end users
own disk.  The only person who knows anything about the nature of the
information in question is the content provider, and it is only the
content provider that truly has per-file-contents (not per file type or
per origin) control over caching.  While I believe that caching should not
be considered infringement, it still needs to be understood that any
liability for infringement that may exist should rest solely with the
content provider!




  There is a suggestion that these issues need to be dealt with by 
parliament.  I obviously agree, but I obviously am not in favor of further 
inconveniencing third parties for the sake of convenience for specific 
distributors of copyright works.

  The music cartels wish to have a broad statement made that anyone who
could theoretically be involved in the communication of any music, whether
from their members or not, should be paying royalties (taxes, welfare,
whatever) to them.  I believe this needs to be rejected by parliament, and
only have those who might individually choose to communicate works from
members of these collective societies pay royalties.  The royalties paid to
collective societies must be managed as a simplification of a royalty
gathering system for the benefit of both the members of the collective and
those who are communicating works.  It must not be seen as a government
handout to the self-named victims of some *theoretical* infringement of
copyright.




Summary of what the law SHOULD be, and needs to become:


  Who should be considered liable:  content provider, mirror maintainer
(Which is in fact a form of content provider).

  Who should not be liable:  anyone else, including someone who links, a
person who downloads, and any intermediary including a cache maintainer,
ISP/IAP.



  The same should be the case for blank media: only those who wish to copy
onto media the works from a collective society should be paying the levy,
not have a general tax on all media regardless of the intended use of the
media.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
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