Anthony Atkielski atkielski.anthony at wanadoo.fr
Sat Feb 5 17:56:06 PST 2005

Sandy Rutherford writes:

SR> This is not so clear.  In a March 2004 decision regarding P-to-P music
SR> sharing, Justice von Finckenstein of the Federal Court of Canada ruled
SR> that: 
SR>    The mere fact of placing a copy on a shared directory in a computer
SR>    where that copy can be accessed via a P2P service does not amount to
SR>    distribution. Before it constitutes distribution, there must be a
SR>    positive act by the owner of the shared directory, such as sending out
SR>    the copies or advertising that they are available for copying.

Or allowing a Web site to be indexed by a search engine.

I'll grant that a site that is public but not linked to or indexed by
anyone could be assimilated with a non-public venue.

SR> A parallel here would be that placing copyright material on a public
SR> website would not amount to distribution and therefore, not be a
SR> copyright infringement.  Of course, it could be argued that if Google
SR> started linking to it, that would constitute advertisement.


SR> However, it is hard to see that as the prerequisite "positive act"
SR> on the part of the web site owner. It is more a positive act on
SR> Google's part.

Google doesn't find out about sites through magic.  Webmasters must
request that their sites be indexed.

And in practical terms, nobody sets up archives of forums and then keeps
them out of the search engines and unlinked to by any other site.  There
are very few useful purposes for Web sites that nobody links to.  I use
them to provide photo albums to clients in a semi-private way, though:
there is no password protection so the client doesn't get confused
trying to access the album, but since the URL is not known to any other
site and is not indexed or pointed to by anyone, it's still fairly
confidential (someone would have to guess the URL to reach the album).

SR> In his ruling, Finckenstein pointed out that there is a parallel with
SR> public libraries.  A public library does not infringe on copyright,
SR> simply by having books available for loan.

That's not really a parallel.  Libraries loan books and in so doing move
content from one place to another; they do not _copy_ content.
Infringement involves illegal reproduction in the vast majority of cases
(on rare occasions it can involve unlicensed use, such as in the case of
unlicensed performances of theatrical works).

SR> Interestingly enough, Finckenstein also ruled that the act of
SR> downloading copyright material from a P-to-P server also does not
SR> infringe copyright.  As far as I know, unlimited P-to-P sharing of
SR> copyright material is still fully legal in Canada.

I'm not sure that Finckenstein fully understood the issue, then.

SR> Please don't ask me to defend Finckenstein's ruling.  There are
SR> aspects of it with which I both agree and disagree.  My point is
SR> simply that there are a lot of grand statements being made in this
SR> thread, when in fact many of the issues are quite subtle.

Then it is best to err on the side of prudence.


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