Re: "Right to Link" In the News

On 2013/09/20 0:32, Bjoern Hoehrmann wrote:
> * Konstantinov Sergey wrote:
>> 3. Article 8 of the WCT states, that "authors of literary and artistic
>> works shall enjoy the exclusive right of authorizing any communication
>> to the public of their works, by wire or wireless means, including the
>> making available to the public of their works in such a way that members
>> of the public may access these works from a place and at a time
>> individually chosen by them."
>>
>> As we see, WCT undoubtfully states that the right of making a work
>> available to the public BY ANY MEANS belongs to author exclusively.
>> Publishing hyperlink to a work definitely makes it available in a sense
>> of WCT as it provides "a way that members of the public may access these
>> works from a place and at a time individually chosen by them". In that
>> sense linking is NOT the same as referring: when you're referring a
>> work, you state its name and catalogue number; when you link it, you
>> state WHERE to found it. URN of a work doesn't break author's exclusive
>> right, but URL does. The only question here is whether you'd be found
>> guilty of knowingly violating the copyright or not -- it depends whether
>> you'd be able to prove "fair use" or not. The link itself is illegal in
>> any case.
>
> It might be helpful if you backtrack on your train of thought here.

Yes indeed. It's always very tempting for us engineers to look at laws 
and similar stuff and think we understand it. And in some cases, that 
actually works. But often it can fail very badly, and without us noticing.

[Disclaimer: I'm not a lawyer, so the explanation below may contain such 
errors, too.]

But contrary to technical specifications, in particular for something 
mostly very exact as programming, the law deals with wide areas of 
fuzziness, and it's impossible to fix that completely because the 
fuzziness does not come from the law, but from the everyday world around us.

That's why for the law, things such as courts have developed, which are 
there to interpret the law in case of disputes. On the other hand, I 
don't know of any court for technical specs, for example.

So the question of what "making available to the public by any means" 
means and what it doesn't mean is not something that can be checked the 
way a technical term in a spec can (usually) be checked. It may have to 
be interpreted based on how this term has been used throughout the 
history of copyright, based on the discussions that went on during the 
treaty negotiation, based on the local laws that implement it, and so on.

And also based on common sense. (At least in my impression) in the short 
term, the law and courts often may get something wrong when evaluated in 
terms of common sense, but in the long run, that usually gets corrected 
(but the long run of the law is way longer than the time spans we are 
used to for technology).


Based probably on some bad experiences, the IETF has developed a strong 
tradition for people to warn each other about amateur lawyering. We seem 
to need some more of this here, too.


Regards,    Martin.

Received on Friday, 20 September 2013 01:41:20 UTC