On 4/15/07, Ray Saintonge <saintonge(a)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Unless the license is withdrawn almost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