Sandy Rutherford sandy at krvarr.bc.ca
Sat Feb 5 15:55:33 PST 2005

>>>>> On Sat, 5 Feb 2005 11:43:32 +0100, 
>>>>> Anthony Atkielski <atkielski.anthony at wanadoo.fr> said:

 MH> But that's different in that it was never released to a public forum
 MH> in the first place (explicitly or otherwise).

 > I'm not sure what you mean by "public forum."  A server accessible from
 > the Internet without any special authorization mechanism is about as
 > public as anything can get, particularly if there is something else
 > linking to it that allows spiders to find it.

This is not so clear.  In a March 2004 decision regarding P-to-P music
sharing, Justice von Finckenstein of the Federal Court of Canada ruled

   The mere fact of placing a copy on a shared directory in a computer
   where that copy can be accessed via a P2P service does not amount to
   distribution. Before it constitutes distribution, there must be a
   positive act by the owner of the shared directory, such as sending out
   the copies or advertising that they are available for copying.

A parallel here would be that placing copyright material on a public
website would not amount to distribution and therefore, not be a
copyright infringement.  Of course, it could be argued that if Google
started linking to it, that would constitute advertisement.  However,
it is hard to see that as the prerequisite "positive act" on the part
of the web site owner.  It is more a positive act on Google's part.
In his ruling, Finckenstein pointed out that there is a parallel with
public libraries.  A public library does not infringe on copyright,
simply by having books available for loan.

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

Of course, Canada is a signatory to the Berne Convention, and
Finckenstein was well aware of this when he made his ruling.

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

BTW, I do have a copy of Finckenstein's ruling, should any want to see
it in its entirety.  (Ooops, I think that I just committed a "positive
act".)  It's 34 pages long.


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