Ted Mittelstaedt tedm at toybox.placo.com
Sun Feb 6 01:55:48 PST 2005

> -----Original Message-----
> From: owner-freebsd-questions at freebsd.org
> [mailto:owner-freebsd-questions at freebsd.org]On Behalf Of Anthony
> Atkielski
> Sent: Saturday, February 05, 2005 5:56 PM
> To: freebsd-questions at freebsd.org
> Subject: Re: favor
> 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>
> 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.

This is a bit of twisting of the definition of "site that is public"
in my opinion.

Suppose I setup a webserver at example.com that will only respond
to http://www.example.com/12345678qwerty/ and will ignore any other HTTP
requests (such as to www.example.com, www.example.com/index.html, etc.

I think it would be incredibly difficult to argue that this is a
public server in any way.  The trailing /12345678qwerty/ is in
effect an access password to the material on the website.  Just
because there's no real .htaccess or some such real HTTP password
authentication on the site, doesen't make it a public site.  An
access password is a password, regardless of whether delivered as a
trailing URL or in an HTTP-auth request.

> 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.
> Absolutely.
> 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.

Not true, Google also picks up sites from links off other sites.

Someone could go out and setup a brand new domain example.com, this
will be publically available via WHOIS, someone else finds it, tacks
on "www" to the domain making www.example.com, finds a website there,
links to it, and bang - google finds it.

Fortunately, caselaw so far has held that there's no requirement to
ask for permission to link, see:


So at least the courts aren't idiots yet, here.

Of course, linking to a site that's password-protected, with a link
that provides both the site URL and the password, might be considered
a bit differently if the purpose of the link was to do something
illegal (particularly if it fell under the DMCA restrictions)

And of course including another person's site in a frameset of
yours is definitely illegal without permission, as it is appropriating
another person's copyrighted material for your own use, because
doing this makes their material part of your site.

> 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.

I agree with this, there is no parallel.  The people that argue that
downloading music from other people is "loaning" the material are

> Libraries loan books and in so
> doing move
> content from one place to another; they do not _copy_ content.

Many times more than books - most large libraries have extensive
CD and DVD collections.  Ours for example gets first-run DVD's the
same time that the local Blockbuster rental place does.  Of course,
there's a huge waiting list for them :-)

> 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.

No, in this I think he did.  It's one thing to download a copyrighted
piece of material, the copyright violation occurs when the copyrighted
piece is actually played on the destination computer, cd player, etc.
because only at that instant of use does multiple copies of the material
come into existence and the original creator is damaged.

Consider the process of downloading, the copyrighted material passes
through a great number of networks which (for a short time, of course)
have copies of this material.  For example assume the downloader is
using a proxy server at an ISP.  A copy of the material exists on
that proxy server, and after the download is completed it may exist for
weeks or months.  If you based copyright violations purely on the
idea of making it illegal for someone to posses a copy of the material,
then the ISP that owns the proxy server now becomes liable.  And of
course, archival copies to backup media, etc. also become illegal.

Now quite obviously everyone downloading illegal copies of music
or whatnot are going to be listening to it, so it's kind of moot issue
in filesharing networks in my opinion.  But, the distinction exists
and is important.  You prosecute people for actually stealing the jewels,
not for just having the lockpick, crowbar, skimask and gloves.

Unfortunately too many content creators would rather have you believe
that they are damaged just because you merely possess an illegal
copy of their work, and not because you are actually using that
illegal copy.  There's a strong brainwashing campaign to make
the assumption that possession = use.  As in, I possess the atomic
bomb, therefore I'm an evil child-killer because I quite obviously
am going to use the atomic bomb.

Uh, well, I guess the brainwashing campaign doesen't extend to
armaments, at least not according to the current administration in
the United States. ;-)  With weapons, they got the reverse brainwashing
campaign running (more bombs = more safe)


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