Anthony Atkielski atkielski.anthony at wanadoo.fr
Sun Feb 6 02:53:43 PST 2005

Sandy Rutherford writes:

SR> Hold on a second.  Shared P-to-P directories certainly are indexed and
SR> Finckenstein knew this.

Where are they indexed?  I though P-to-P was a proprietary
protocol--which implies that public services like Google can't index it.
An index internal to the P-to-P system wouldn't count, because it would
still be effectively visible only to people using that system ... like
e-mail systems.

SR> True, but it is not the person who puts the content on a website that
SR> is doing the copying.  It is the person who downloads it.

If the content came from another Web site, it was copied.  Google copies
content, for example, when it caches indexed Web pages.  And indeed, it
also downloads the content, since it has to do that to get it from the
original site in the first place.

SR> If I own a CD, then it is legal for me to make as many copies as I
SR> wish, as long as I don't distribute them.

And as long as the extra copies don't allow you deprive the copyright
owner of revenue in some way, usually. For example, if it allows you to
run multiple copies of a game for all the people in your office, it's
probably an infringement.

SR> He certainly did understand the issue, at least as it relates to
SR> Canadian copyright law. (He is a justice of the Federal Court of
SR> Appeals, after all.  He does know his law.)

I'm sure he knows the law.  But a lot of judges don't know the
technology.  They can apply the law correctly if they understand exactly
what the technology is doing, but often they don't know exactly what the
technology is doing and rely on incomplete analogies they've read or
heard somewhere.

SR> It is important to remember that copyright and patent rights are not
SR> "God-given rights". Like all jurisprudence, they are man-made for
SR> purely pragmatic reasons. It is in the best interests of society
SR> that creativity be fostered. Creativity is best fostered by
SR> protecting intellectual property rights, but not doing so in a
SR> manner which overly restricts the free-flow of ideas.

Agreed.  Which is why I think copyright should be rolled back to the
original term of 28 years, renewable once.  This "lifetime of the
author plus 1000 years" trend is ridiculous.

But while copyright is in effect, it must be observed, in order to keep
the creators of content from starving.

SR> A delicate balance must be struck. Looking for ways to adapt the
SR> current copyright and patent laws, which were largely devised at the
SR> time of the industrial revolution, to the computer age is basically
SR> an exercise in pounding a square peg through a round hole.
SR> Finckenstein recognized that these issues should not be decided in
SR> the courts, because they are primarily not legal issues. They are
SR> matters of social policy, which ultimately should be decided in
SR> Parliament. By taking such a restrictive view of how current
SR> copyright laws extend to electronic publication, Finckenstein was
SR> challenging Parliament to throw out the current laws and rethink the
SR> entire matter from scratch. In my view, this is a good approach.

Traditionally IP decisions have often been a roll of the dice, so I
don't know if that will work.  It might just encourage Parliament to
leave things alone, relying instead on courts' discretion (and thus
making the roll of the dice even more random).


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