Anthony Atkielski atkielski.anthony at wanadoo.fr
Sun Feb 6 06:00:59 PST 2005

Sandy Rutherford writes:

SR> I'm not sure what you mean here.  If you are going to call http
SR> public, then wouldn't any other open protocol also be public?

It's a network that people explicitly opt into.  For example, if you put
something on a P-to-P network, it's reasonable to assume that it will be
available to other users who choose to use that network, but it's not
reasonable to assume that it will be available to other people who have
no access to such networks.  Similarly, placing material on the Web
means that it's reasonable to assume that anyone with access to the Web
will have access to the material, but it's not reasonable to assume that
people without Web access will be able to get to it (via a printed book,
for example).

Finally, making something public via the printed page implies that it's
accessible to everyone who can buy printed pages, but it does not imply
publication on the Web, which is a separate medium.  That's why print
rights don't include electronic rights (and vice versa).

SR> 80. (1) Subject to subsection (2), the act of reproducing all or any
SR>         substantial part of (a) a musical work embodied in a sound
SR>         recording, ... 
SR>         onto an audio recording medium for the private
SR>         use of the person who makes the copy does not constitute an
SR>         infringement of the copyright in the musical work, the
SR>         performer's performance or the sound recording.

SR> [25] Thus, downloading a song for personal use does not amount to
SR>      infringement. See Copyright Board of Canada, Private Copying 2003-2004
SR>      decision, 12 December 2003 at page 20.

I agree.

SR> Now #2, authorization:
SR> Finckenstein states:
SR> [26] No evidence was presented that the alleged infringers either
SR>      distributed or authorized the reproduction of sound recordings. They
SR>      merely placed personal copies into their shared directories which were
SR>      accessible by other computer user via a P2P service. 

Why would they put these copies into a shared directory other than to
redistribute them to other people?

SR>      I cannot see a real difference between
SR>      a library that places a photocopy machine in a room full of
SR>      copyrighted material and a computer user that places a personal
SR>      copy on a shared directory linked to a P2P service. In either
SR>      case the preconditions to copying and infringement are set up but
SR>      the element of authorization is missing.

This analog is flawed.

In a library, all the books on the shelves are authorized reproductions
of copyrighted works.  In a P2P configuration, typically, the files in
the shared directory are unauthorized copies of copyrighted works.
Thus, placing unauthorized copies of files in the shared directory
is infringement, just as placing photocopies of books on the shelves of
a library would be.

A further difference is that books in a library can be consulted without
making copies of them, whereas consulting files in a shared directory on
a P2P network requires making copies of them, which is infringement if
unauthorized.  A P2P network is like a library without open racks in
which the only way to consult a book is to ask for a photocopy of the

SR>      ...Before it constitutes distribution, there must be a positive act
SR>      by the owner of the shared directory, such as sending out the
SR>      copies or advertising that they are available for copying...

What purpose does a shared directory serve, if not distribution?

SR> I believe that your comment regarding "...as long as the extra copies
SR> don't allow you [to] deprive the copyright owner of revenue in some
SR> way..." is referring to the "Exclusive Right to Make Available" that
SR> is often attached to most copyrights.  (Correct me if I am wrong.)
SR> Internationally, that right is stipulated in the World Intellectual
SR> Property Organization Performances and Phonograms Treaty (1996).
SR> Canada has never signed that treaty.  The USA has.  This amounts to an
SR> important difference.  With WTTP, I can prevent anyone from infringing
SR> on my ability to gain income from my copyright material, by (say)
SR> making such material "available" from other sources.  Without WTTP, by
SR> and large the best that I can do is prevent someone else from making
SR> money for themselves with my copyrighted material.  These are of
SR> course generalizations, but this is the roughly idea of how I
SR> understand that WTTP changes the situation.

That's a big difference!

SR> Note that there are some clear parallels in this with how the GPL &
SR> BSD licenses work.

I'm not sure why this software isn't just released to the public domain.
Then it would truly be open source (until the patent attorneys showed
up, at least).


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