Andrew Gray wrote:
On 04/06/07, James Farrar
<james.farrar(a)gmail.com> wrote:
It does
not. Them recieving it is not the action that causes the
infringement, but rather us giving it to them that does.
Ah, but "we" don't give it to "them"; "they" take
it. It's "their"
action, not "ours".
Run back to first principles for a second. I give you a pirated copy
of a novel I made. Which one of us has infringed copyright? That would
be me; I did the copying without the right. The law considers
copyright infringement to be an act done by the publisher of the
material, which is sensible enough. (There may or may not be ancillary
punishments for then recieving it, but that's secondary)
OK
The legal interpretation of having material on the
internet is that
you are "publishing" it each and every time to each and every person
who comes along and requests the file (at least, this seems to be the
dominant view at the moment) - as such, each time someone requests a
copy of the file *you* make a copy of it and give it to them.
I'm familiar with the theory, and know that it has been applied in some
countries. Its application in US law is far from clear. There is also
the question of safe harbour for ISPs.
Logically, therefore, you breach copyright every time
someone else
accesses the file. Follow the wonderful twisted insanity? Their
action, your criminal act.
It's only logical if you accept your underlying premise. If the
download is from a neutral ISP it acts as a kind of firewall. Sometimes
I'm led to believe that paranoid application of copyright law with the
approval of WMF could endanger our ISP status. Also, we are talking
about civil infringement, not criminal infringement. Criminal
infringement is more serious, but requires an even higher standard of proof.
It becomes weird because you don't have to be
involved in the loop at
all, and as such they can initiate *you* breaking the law, though
there's probably some wonderful case from the fifties involving
automated musical phone lines or something to show why it all makes
sense. After all, you do presumably have to knowledgeably have put the
file there, or something.
That remains to be seen.
(Imagine, incidentally, if I built a machine which
would print and
bind bootleg copies of Harry Potter novels on the push of a button. Am
I the maker responsible for the breach of copyright? Is the user? I am
tempted to see if we can get that set as a question in a law exam...)
Building the machine itself would not be a problem. It could still be
used to print works that are safely in the public domain. It's the
actual printing and distribution that would violate Rowlings
copyrights. Binding would be irrelevant. She would be in a better
position to prove damages thab our bad joke idiots.
Ec