Another fun DMCA case [LWN.net]

Another fun DMCA case

Posted Jul 14, 2005 14:42 UTC (Thu) by ksmathers (guest, #2353)
In reply to: Another fun DMCA case by rev
Parent article: Another fun DMCA case

I don't know why you think that the robots.txt usage has to be mandatory. Whether the control is mandatory, optional, accidental, a matter of convenience, or used for any other reason doesn't play into the law.

Regarding making an affirmative effort, I've already written the same thing myself elsewhere in this discussion. You seem to think that just because the use of robots.txt is optional that this means that no one could show that you had made a special effort to avoid the use of robots.txt. That simply isn't true.

There are several things that would tend to imply to a court that you had made an effort to bypass the control. For example, altered source code on your computer that disables the robots check in some tool which normally uses it, statements from business partners, neighbors, or aquaintances characterizing your activities, suddenly changing a previous business practice, and logs indicating that the robots file was sent but was not respected.

In each of these cases you'd have to explain why you had taken the steps you did, or why the evidence was in error, and either a judge or a jury would decide which was more believable. Coming into court and claiming that 'it wasn't a copy protection mechanism, so bypassing it was okay', would only be a quick way to get yourself a negative judgement.

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Another fun DMCA case

Posted Jul 14, 2005 16:19 UTC (Thu) by rev (guest, #15082) [Link] (3 responses)

"I don't know why you think that the robots.txt usage has to be mandatory. Whether the control is mandatory, optional, accidental, a matter of convenience, or used for any other reason doesn't play into the law."

Well, I am curious to see evidence supporting this claim, as your interpretation of "copyright protection scheme" defies common sense. Moreover, the consequences of your interpretation are absurd: I place a file called blahblah.txt somewhere on my web site containing a list of filenames though shalt not HHTP GET from my web site. You neverthless do. You, you dirty copyright infringer, I sue the hell out of you.

I would be interested you quoting the law and/or case law supporting your claim.

Another fun DMCA case

Posted Jul 14, 2005 18:22 UTC (Thu) by ksmathers (guest, #2353) [Link] (2 responses)

Moreover, the consequences of your interpretation are absurd: I place a file called blahblah.txt somewhere on my web site containing a list of filenames though shalt not HHTP GET from my web site. You neverthless do. You, you dirty copyright infringer, I sue the hell out of you.

Well, the situation you describe wouldn't qualify as a DMCA violation unless there were a client/tool that normally reads that file and uses it to decide which files are accessible (the technological measure). Secondly you would have had to use that client/tool, and have bypassed the control in some way.

It seems rather simple to me, namely unless you have taken some affirmative step to bypass the control then you can't very well be liable for bypassing the control. If you did affirmatively bypass the control, then arguing that it isn't a control isn't very useful unless the control is truly absurd; that is unless you can guarantee that a judge or jury wouldn't be able to construe it that way, even with the help of a litigator clearly describing all of the reasons that it should be.

Another fun DMCA case

Posted Jul 14, 2005 19:16 UTC (Thu) by niner (guest, #26151) [Link] (1 responses)

But nobody said, that anyone put any effort in circumventing the "robots.txt copy control measure". There are only a handful of tools out there that even support robots.txt, as it's a file that has a very special purpose and this only in connection with internet search engines.

E.g. wget as one of the tools that support robots.txt even lets you switch off the support via a command line parameter: -e robots=off

The easiest and probably most used way to copy a webpage is to just use the "save page" feature of your webbrowser. An I know of no webbrowser that even recognizes a robots.txt file.

If I wanted to write a service like archive.org which crawls and saves webpages I'd do it in perl and would have to knowingly put effort in supporting something like a robots.txt. So how can you call something a "copy protection measure", if I have to know that you have it and what way you tell me how to behave and actually write code to behave like you want. My other option is to just do nothing and how can I have done something bad if I have done nothing?

Head over to Groklaw

Posted Jul 14, 2005 19:40 UTC (Thu) by ksmathers (guest, #2353) [Link]

Yeah, if the plaintiff can't show that there was any effort to defeat the copy control measure then they are probably hosed.

For what it's worth, Groklaw seems to have picked up the story, so if you'd like to read a lot of different points of view on the subject, I'd suggest heading over to Groklaw. By the way, PJ's view is that robots couldn't be considered a technical copy prevention mechanism. So there's at least one dissenting opinion for you.