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

[mskala at ansuz.sooke.bc.ca]

On Mon, 23 May 2005, Russell McOrmond wrote:
>    - Redistribution/archiving of works that were "communicated by
> telecommunications" in a "no membership required" way.  I believe that
> there is (or should be, if you believe the law doesn't offer this) an
> "implied license" which suggests that making works available in a "no
> membership required" way implies that certain activities have been
> authorized.   This is NOT the public domain, just pre-authorization of
> specific activities.

I agree with that as far as it goes, but I think the pre-authorization or
implicit license is very narrow, covering only what you'd reasonably
expect, by the accepted practices of the relevant community, to be implied
by the actions of the copyright holder.  Posting a page on a Web site
implies that I intend and permit people to read it in their Web browsers.
It doesn't imply that I intend and permit people to package it into a
hardcopy book and sell it, nor "archive" it in such a way as to make it
look like they wrote it.  Neither Google nor archive.org nor any
responsibly-run system similar to them that I can imagine would fail to
attribute the source of publicly-archived content, and one that did would
be breaking the implied license.

>    What those pre-authorized activities are seems to be far more
> controversial than I originally thought, and includes a desire by some

For me, most of the activities I don't think are authorized and you seem
to think are authorized, are activities we both think are legal; the
difference is only in *why* they're legal.  You're saying that they're
legal because they're authorized, and I'm saying they're legal despite
being unauthorized, because they're fair dealing.  The only activity we
seem to actually differ on is that you seem to think reproduction without
attribution is acceptable subject to a bunch of technological issues, and
I don't.

>    I am curious why do you insist that there should be a
> mandated/regulated tie between these different files?  If I offer an

There's a link between person B's action in posting the image file, and
person B's other actions or lack thereof (namely, failing to provide
attribution).  The issue is person B's actions, not the relationship
between the files.

> image at a specific URL, that is unrelated to whether I happen to also
> offer a separate document that references that image.  What is
> authorized to do (or not do) to that image should be independent of some
> other document(s) that may or may not exist.

What you do with one file is not independent of what else you do or don't
do with other files if they're part of the same course of conduct by you.
What you do with one file would generally be independent of what someone
else with no connection to you does or doesn't do with other unrelated
files.

>    The tools to find these reverse-links do not exist, nor do I
> understand why people want to regulate this.  If I have a copy of an

The regulation is on persons and their actions, not on files.

>    The only solution I can see to this problem is for the image file to
> contain metadata.

Metadata may make things easier, but it can't be a complete solution,
because a computer examining the metadata can never have all relevant
information about the persons and their actions involved in the
situation.

>  An image can exist without there being a "page" that
> describes it, so I do not consider it reasonable to suggest that one
> cannot exist without the other.

But if we're arguing a case where it happens there is a relevant page that
describes the image, and visiting that page would be the normal way for
someone to see the image, then the fact that the image could concievably
have been posted in isolation instead is completely irrelevant and a waste
of the court's time.

I'm not saying that it's impossible for pages and images to be separate.
I'm saying that if you publish my work, you have to give attribution
unless you have permission not to.

>    Whether specific viewing tools do or do not display that metadata
> (and how) is IMO a technical detail, and should not be considered in a
> law that should be technologically neutral.

If the general public, not necessarily every last one of them but even a
significant minority, when they use a service you provide, will leave with
a mistaken impression about the authorship of my work, and it's because of
your actions, and you know that, and you'd have been able to create a
different situation if you wanted to, then it's hard for you to claim that
you gave proper attribution for my work.  You were responsible for letting
the public know where you got the work; you didn't.

It has nothing to do with "files", "URLs", "metadata", an enforced link
between any of those things, or any other technology-specific issues.
-- 
Matthew Skala
mskala at ansuz.sooke.bc.ca                    Embrace and defend.
http://ansuz.sooke.bc.ca/