Another fun DMCA case [LWN.net]

Another fun DMCA case

Posted Jul 13, 2005 5:00 UTC (Wed) by jwb (guest, #15467)
In reply to: Another fun DMCA case by ksmathers
Parent article: Another fun DMCA case

Riddle me this, ksmathers.

Suppose I say to example.net "GET / HTTP/1.0" and example.net says "HTTP/1.0 200 OK" and proceeds to send me a string of octets. In this scenario, who has made the copy?

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Another fun DMCA case

Posted Jul 13, 2005 5:55 UTC (Wed) by ksmathers (guest, #2353) [Link] (5 responses)

As a rule, the person who conducts themselves in bad faith is likely to be held liable for the copyright infringement. If you walk into Kinko's and pretend that you are the author of some document and have them copy it for you, it is you who are liable for the infringement. If Kinko's knew or should have known that you were not the author (for example your name doesn't match the name on the cover) then they are liable.

I've had friends who are professional photographers go around to the local print shops on a regular basis to show the employees their copyrighted work with the dual goal of keeping them from copying the images, and ensuring that they will be held liable if they copy them anyway.

Another fun DMCA case

Posted Jul 13, 2005 7:06 UTC (Wed) by jwb (guest, #15467) [Link] (1 responses)

You misundestand my point. In this scenario, it is actually impossible that I made the copy, because I was never in possession of the original. The maximum number of instances of the work which I simultaneously possessed was 1. The server, on the other hand, is the party which made the copy. It has the original, and at one point in time it was in possession of 2 instances.

It's not like asking Kinkos to copy copyrighted photographs. It is like walking into photo bureau, and asking politely for a copy. Then as you leave they have you arrested.

Another fun DMCA case

Posted Jul 13, 2005 18:38 UTC (Wed) by ksmathers (guest, #2353) [Link]

I don't know why you think it is important to have been in posession of the original -- that part is completely immaterial. That said, if your use is a fair use, and you haven't been infringing the copyright on the work, then obviously you don't have anything to worry about as regards copyright law. Of course the DMCA can sometimes be invoked even when copyright law can't.

In the case in question though, Archive had copied and distributed the pages they had collected from the site alleging harm, so there is basis for both copyright and DMCA action. I don't think the DMCA part will hold up though unless Archive took some affirmative action to bypass the robots.txt file.

(The statutory maximums for the copyright violation by itself probably wouldn't even make it worthwhile to go to court.)

Another fun DMCA case

Posted Jul 13, 2005 9:36 UTC (Wed) by man_ls (guest, #15091) [Link] (2 responses)

I've had friends who are professional photographers go around to the local print shops on a regular basis to show the employees their copyrighted work with the dual goal of keeping them from copying the images, and ensuring that they will be held liable if they copy them anyway.

You are kidding, right? This gives a new dimension to the exercise of covering your ears and singing "Lalalala I'm not listening lalalala."

Another fun DMCA case

Posted Jul 13, 2005 18:19 UTC (Wed) by ksmathers (guest, #2353) [Link] (1 responses)

That would be hilarious... I can imagine it now.

Plaintiff: Your honor, plaintiff aleges defendant knew or should have known that the works in question were protected by copyright, as established by the documented fact that on at least three occasions plaintiff visited defendant's place of business and showed examples of the works.

Defense: Defendant objects your honor, there is insufficient basis for the fact that defendant saw the works in question. Defendant held his hands to his ears, closed his eyes and said: "La, la, la, la, I'm not listening on each of those three visits until plaintiff had departed...", so you see...

I would see an idiot.

-kls

Wilfully or will-lessly

Posted Jul 13, 2005 19:48 UTC (Wed) by man_ls (guest, #15091) [Link]

Well, the example of covering your ears and singing was not to be taken literally. But I can imagine the lines of the defense: defendant was not in the shop / did not look / did not even want to look / did not pay attention / does not remember.

The whole thing looks so ridiculous... Maybe it's the fact that under Spanish law, showing your works around would be completely pointless. While intention is obviously important in penal law (it is what tells apart homicide from murder), it is not for civil liability; this "bad faith" stuff must be something left over from the Reform and that pesky "free will" doctrine. Here you are responsible for your actions in the same degree and fashion regardless of your intention.

IANAL, although I have consulted this specific point with one.