On 4/15/07, Ray Saintonge saintonge@telus.net wrote:
Anthony wrote:
On 4/14/07, Ray Saintonge wrote:
Unless the license is withdrawn almost immediately, it would likely be impossible to enforce the withdrawal. When the mirror sites pick it up their actions are based on the licence status when they take the material. If this happens in the time between the granting and the withdrawal they have a legal copy.
I'm not sure what it means to "have a legal copy", but unless that mirror site has a license to copy and distribute the work it doesn't matter when they downloaded that copy.
Does the mirror site have a license, because someone checked a box on a completely different site saying that they release the work under the GFDL? Maybe, but it seems this would be something difficult to convince a judge happened in the first place. Once the copyright holder has convinced the judge that she has a valid copyright on the work it's up to the mirror site to show they have a license.
One needs to presume that all of these events will be time-stamped. The person copying the freely licensed material does so on the basis of what he sees; he should be under no obligation to periodically review his source to determine if the situation has changed.
That's an interesting argument. I agree the person copying the materials shouldn't be under an obligation to continually review the source. However, it seems there's a valid argument that the person has to at least get a license from the copyright holder in the first place. Materials under the GFDL are not sublicensed, the license is obtained from the original copyright holder. If a license is granted in the woods and no one hear it, does it exist? In all seriousness, this argument rests upon A being granted a license by B when B submits text to C. It's a strange concept, and I don't know of a precedent for it outside of free software (nor do I know of a court case which addresses the question, maybe your YouTube case does - if you have a link to it I'd like to see it).
There does remain the question where the person who uploaded the material had no right to do so in the first place.
Well, yeah, that too. And many contributors would probably be pretty difficult to trace. Maybe even nearly impossible if the IP addresses have been deleted.
Title to that material continues to be faulty no matter how many people are in the chain. I do remember reading about a document that was stolen from the South Carolina archives more than a century before had to go back there despite a long string of innocent transfers that had taken place since the theft.
I think you're drawing too much of a parallel between copyright and physical property. In any case, title to copyright doesn't change hands under the GFDL. The GFDL is a nonexclusive license, not a transfer of copyright.
Check marks too can commit a person.
Maybe. But actually there isn't even a check mark involved in a Wikipedia edit, and as I mentioned the third party mirrors wouldn't be a party to that transaction anyway.
Shrink-wrap contracts on software have been declared valid even though most people have no clue about what they say.
I'm only aware of one case where this can be claimed to be true, which was an instance of software which was purchased directly from the copyright holder. The argument in that case was that the contract was formed at the point of sale, not at the time of any clicking.
That said, a contract certainly can be entered into electronically, by clicking a check box and submitting a form. Online sales wouldn't really work if it couldn't. But if you're going to argue that a contract is being entered into, then the parties to the contract would presumably be the WMF and the submitter, and that'd leave third party mirrors SOL.
For them the simple fact is that if they don't say yes, the software won't work.
It seems to me that the mirrors have to basically rely on the assumption of good faith, in that the vast majority of people probably *won't* try to sue them. The WMF is on much more solid footing. They have protection under OCILLA, and they are a party to any clickthrough agreement which is made.
Anthony