- From: Martin J. Dürst <duerst@it.aoyama.ac.jp>
- Date: Thu, 10 Mar 2011 20:34:10 +0900
- To: Jonathan Rees <jar@creativecommons.org>
- CC: Tim Berners-Lee <timbl@w3.org>, TAG List <www-tag@w3.org>
I'm replying to this specific mail because it contains most details
(thanks for digging them up, Jonathan!).
On 2011/03/09 23:34, Jonathan Rees wrote:
> I saw this one too, and almost relayed to www-tag, but I thought it would be
> better to find out exactly what this person was being charged with and on
> what evidence.
Yes. From most places, it's not very clear what the site in question
did, and it's no longer possible to check it out.
> When I tried to drill down on this, the trail seemed a bit
> thin.
>
> Here is the relevant techdirt article:
>
> http://www.techdirt.com/articles/20110303/16584013356/ice-arrests-operator-seized-domain-charges-him-with-criminal-copyright-infringement.shtml
The first paragraph there says:
"when that domain was seized, we had noted that channelsurfing did not
appear to host any content itself, but merely embedded content from
other sites." [For the rest of this mail, I'm assuming the above is
correct.]
It then goes on to say that this at most could create some "inducement"
claim, but raises questions about why there was a criminal claim.
I personally also have my doubts about the idea of criminal copyright
violations, and in particular about the eagerness with which these seem
to be used by some agencies and supported by some industries. Also the
connection between Immigration and Customs and copyright infringements
seems dubious; surely most of the viewers of US sports TV programs are
in the US.
However, as I have said on earlier occasions, we should be very careful
to distinguish "referential linking" (the classical example is <a
href=...>) from effective visual inclusion by use of an URI (the
classical example is <img src=...>).
The demandprogress.org site that Tim referenced seems to not make that
distinction at all (or they didn't get the facts right). If I were an US
citizen, I'd definitely want to protest at least some of the tougher
methods used by the investigators, but I'm not sure I'd want to throw
sending around links to (possibly copyrighted) stuff into the same pot
as making money on advertising around content grabbed from others.
For me, the fact that the content is not hosted on the accused's site is
quite irrelevant. What matters is the end effect of pulling things
together on a page, and creating the impression they are yours. The
"server test", mentioned for example in Perfect 10 vs Google, in my view
will eventually be abandoned, because it will be realized that the
distinction between whether something is included by reference (as in
<img src=...>) or by actual copying (as has to be done to put text in a
Web page, because the Web doesn't support text transclusion) is just an
artefact of technology (things might be completely different on the
technical level if Marc Andreesen had suggested something like <img
data=...>), not in any way affecting what actually happens between the
content and the user, and the surrounding economic system.
Of course, it may take some time ('some' may end up to be a lot, like 10
or 20 years or so, judging from the glacial pace at which e.g. the
patent system is tweaked with) for not-technical people to understand
what's going on underneath the hood (of a browser), and for technical
people to understand that what's going on underneath the hood may not be
what's relevant, but I think things will eventually get there.
> This leads to these two ICE press releases:
>
> http://www.ice.gov/news/releases/1102/110202newyork.htm
> http://www.ice.gov/news/releases/1103/110303newyork.htm
I have looked at that, and at the banner on http://channelsurfing.net/.
[The ICE should fix their text (how do you convict somebody of a
"criminal felony copyright law" :-?, and should use text and CSS where
possible.]
> It certainly sounds as if ICE has convinced a judge at arraignment (I'm
> assuming that there was an arraignment) that linking can constitute
> infringement. But it's as likely that both the ICE and the judge are
> confused about how the technology works. I'd like to hear from someone
> competent to do legal analysis before reacting too strongly to this case.
I'm not a lawyer, but I think legal analysis in this case won't help
much, because this is law that is still being made. And the TAG or the
W3C should not write some amicus brief based on legal analysis, it
should write about what it understands, namely technology (although
having the help of a lawyer probably won't hurt).
> The action seems to be on EFF's radar:
>
> https://www.eff.org/deeplinks/2011/02/what-congress-can-learn-recent-ice-seizures
>
> "Significantly, the websites targeted in the most recent ICE action appear
> to have merely linked to infringing content."
"merely linked", if it means "transcluded using an URI", seems quite
euphemic, and risks to put a bad light on actual referential linking,
which (modulo things such as libel laws,...) should always be allowed.
Regards, Martin.
> Best
> Jonathan
>
> On Wed, Mar 9, 2011 at 5:18 AM, Tim Berners-Lee<timbl@w3.org> wrote:
>
>> It seems Issue-25 has been escalated.
>> Tim
>>
>>
>
--
#-# Martin J. Dürst, Professor, Aoyama Gakuin University
#-# http://www.sw.it.aoyama.ac.jp mailto:duerst@it.aoyama.ac.jp
Received on Thursday, 10 March 2011 11:35:15 UTC