[d@DCC] Unintended consequences of treating the anonymous part of the Internet as other than BY-NC-ND

Sun May 22 18:09:45 EDT 2005

   I am trying to keep my replies to a minimum as I am information 
gathering.  I am finding that Matthew and I are 95% in agreement other 
than some "how" details, but find that there is less in common in 
reading messages from other people.

I am also being reminded that the "quote and comment" style is too 
argumentative.  I feel almost like we are forming "opposition parties" 
in some form of cyber-parliamentary-debate ;-)  I believe we are 
generally in agreement except some details, and I think it is very 
useful to expose and explore those details.

Note: "making available" makes me far more nervous than the "implied 
license for the public Internet" question.  I think we all need to 
explore all of these different questions to know where we each stand.

Charles MacDonald wrote:

>> This is familiar thinking from Access Copyright.  They believe that 
>> unless you have an explicit waiver of royalty that copying a file 
>> without paying a royalty is an infringement.  They state that 
>> copyright *IS* a right of remuneration, and that if someone choses to 
>> waive copyright (IE: not collect a royalty) then they must be very 
>> explicit in that.
> 
> 
> NO NO NO.
> 
> Access Copyright wants to create a new revenue stream from activity that 
> is fairly clearly within the current right of "fair use/Fair dealing" 

What activities do you think are under fair dealings?  According to 
Access Copyright and many lawyers "a copy is a copy is a copy", and fair 
dealing is so narrow as to not cover much of anything.

Way back-when a IMHO incorrect decision was made that in a computer that 
even if the bit exist both on the hard disk and in RAM that this is an 
additional copy, and thus required permission and was not "fair use/fair 
dealings".  In my mind copyright should not enter into the picture 
unless bits enter-or-leave a computer via some sort of storage or 
communications media.

I have not see anyone successfully argue that the type of copying we are 
talking about is a "fair dealings" issue as these are communications of 
a work that under different circumstances (behind a TPM for instance) 
that would clearly require permission.  I believe (and the reason for 
this thread) that offering copies via a network service (HTTP, whatever) 
to an anonymous person is itself a form of granting permission.

In my mind the debate is about what type of permission is being granted, 
and what the limits are of this permission.

Matthew and I seem to agree on the following about files offered to 
anonymous audiences.

  - That permission for royalty-free copying is granted for files 
offered to anonymous audiences under specific conditions:
     - Attribution must be kept (how is another question)
     - non-commercial use (you can not be selling the work)
     - verbatim (you can not change it in any way)

  This is what I had been suggesting, that the style of license 
"implied" by allowing a file to be offered to an anonymous audience is 
similar to (but possibly not the same as for other reasons) an AT-NC-ND 
creative commons license 
http://creativecommons.org/licenses/by-nc-nd/2.0/ca/

Where there is disagreement with Matthew:

   - what form does this attribution take?
   - does the "location" (URL, filename, etc) form part of the attribution?
   - In order to make false claims of authorship (violate attribution), 
does one have to DO something (State in some other page that the author 
is different than it is), or FAIL to do something (IE: fail to indicate 
in every page that references the document who the copyright holder is)

Other questions we haven't even spoke about yet:

   - what about translations/transformations.  Is permission granted for 
the document modifications made by anonymizer (changes URLs in HTML 
documents) and automatic translation services?  Can these be transmitted 
  to the person requesting under a personal/private use type of 
exception only to the person requesting it, but never redistributed to 
others?
   - what about printing for personal/private (obviously non-commercial) 
use? What about archiving on other than paper media?
   - (part of the current policy debate) Is use by educational 
institutions considered commercial use or non-commercial use?

   With Charles we (at first glance) seem to disagree on more. He 
'appears' to be suggesting that the implied license is more like a 
"private copying" situation.  This unknown/anonymous audience member is 
allowed to make royalty-free copies for personal/private use, but is not 
allowed to re-publish it in any way.

   I may be wrong, and it may be another difference of opinion on the 
method of attribution.  It seems that Charles is happy with what Google 
and Archive.org are doing.  Google has a banner at the top for HTML 
documents, but not for images.  Does this mean that it is 
document-dependent whether Google is considered infringing?  They are 
"failing" to do something to show attribution for documents other than 
HTML documents:

http://images.google.ca/images?q=tbn%3Awww.flora.ca%2Frussell%2Fpic%2Frinaruss-s.gif

In the case of HTML documents they are modifying the HTML file, which 
can be said to be a violation of the "verbatim" requirement?

Is the URL really what is being trusted?  What if in the future we move 
to a system where URL's have no human-readable text in them?  What if we 
wrote bots that would copy files from the Web, translating URLs to 
Freenet CHKs (Content Hash Keys), allowing people to browse the Internet 
entirely anonymously.  In this case the URLs would no longer reference 
the originating site, but a CHK of the unique document that could be 
being copied from anywhere in the Freenet network.  Would this be 
considered a violation of moral right of attribution, simply because the 
URL was substituted with a CHK?

Note: Servers automatically modifying HTML documents to make the URLs 
work within a new environment are not new.  This is how the Anonymizer 
works.  Do a view source on any of the pages at:
http://anon.free.anonymizer.com/http://www.digital-copyright.ca/

In this case there are those that would argue that what Anonymizer is 
doing is not a "verbatim" copy as it is modifying all HTML documents. 
Would those in this forum consider this to be an infringement?  Is this 
not an infringement because these pages are not being "republished", but 
being considered part of the reception by the user of anonymizer?

> NO, I would in fact turn that idea on its head and require educational 
> institutions to install a cache like Squid to avoid 30 little fingers 
> downloading 30 copies of the same web site..and that is part of the 
> working of the net.

   Are you suggesting you think it should be considered a copyright 
violation to not use a cache?  Careful what you (publicly, archived) ask 
for ;-)  It is one thing to try to ensure that copyright law doesn't 
discourage or outlaw caches, but another to suggest that copyright law 
should get into the business of mandating technological issues such as 
network efficiency.

 > And in the process of linking, it should be required to state who
 > created what you are linking to.

   I don't generally do that, nor do I believe anyone should ever have to.

   If anyone happens to know copyright holder of any of these 
deep-linked images, please let them know in case they feel strongly 
enough about this to wish to sue me ;-)

http://www.columbia.edu/acis/history/tubes.jpg
http://home.hccnet.nl/k.dereus/Buizenboek1.jpg
http://telecomottawa.net/~cmacd/TU-MotScuba.jpg
http://www.vacuumtubes.com/images/zalytron_5692-1.jpg
http://telecomottawa.net/~cmacd/TU-locMR.jpg
http://www.surplus-electronics.com/KRCA.jpg

-- 
  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  http://www.digital-copyright.ca/blog/2 (My BLOG)
  Sign the Petition Users' Rights! http://digital-copyright.ca/petition/
  To protect Internet age creativity we must reform WIPO, not copyright!