banquetbear wrote in post #14754560
...I don't think I need to read it in full: just quote the section that declares that a photo stored in a computers cache is a copyright violation.
Which is why I quoted it.
It is addressed. Its not an infringement. If you think that the act of copying an image to the cache is infringement then cite the law that makes it so, or stop accusing people of hypocrisy.
Are you giving us a legal opinion here? Because I'm pretty sure that you are wrong on the law here: yet again.
And yet, the law says this:
The creation of the cache is an essential step: the net wouldn't work in any other way. Its not an infringement.
Then explain how the 9th Circuit arrived at its ruling at all. By the reasoning you're employing here, turning on the computer system does not constitute copyright infringement when it loads the operating system (an essential step in operating the computer at all!).
Like I said, the 9th Circuit has turned the part of the law that you cite into a dead letter. I don't know how the legal system works in your country, but here in the United States, court decisions override the law when there is conflict between the two. That's because the courts are the final arbiters of the law. The only exception is when the law in question comes later than the decision in question, and then only for the parts of the law that come later.
While the law makes no provision for accidental vs intentional, your posts do. You made claims that examples of unintended actions like the creation of caches and backing up files were infringements. THIS WAS YOUR CLAIM. To support this you cited an example of intentional, willful infringement. This does not support your claim.
That's because copyright law itself forbids all copying that is done without the copyright holder's explicit authorization, except in those situations specifically exempted in law.
Look, you appear to be attempting to treat copyright as if it is an "all actions are allowed except when explicitly denied" type of law. But that's the point: it's not such a law. It is an "all actions are denied except when explicitly allowed" type of law.
This has nothing to do with how I see the law. I just want you to stop making one claim, producing evidence that supports a different claim, and then claiming you are right. Well you are wrong.
The reason I cite the case in question is to show that the act itself that I discuss is regarded as copyright infringement, at least by some of the courts here in the United States. Now, the intent of the user may or may not be relevant, but as I said, I haven't been able to find any jurisprudence which completely exonerates the alleged infringer based upon his lack of intent. Quite the opposite. See below.
117 specifically exempts cases (in software) where the creation of a copy has to happen in order for the software to work.
And yet, despite that, the 9th Circuit ruled that the copy of the software that was "fixed" in RAM constituted a copyright violation. Most certainly that copy was necessary in order for everything else to work.
Googling for the phrase "when there is uncertainty, infringement should be assumed" leads back to this thread and to your post. This isn't a legal opinion, is it. But it doesn't matter: because copying to a cache is not an infringment.
Of course, I disagree, and I would bet the 9th Circuit disagrees as well.
And, in fact, there does exist a case in which the very thing I speak of was opined as copyright infringement by the court!
From Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc:
Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc wrote:
a. Do those who browse the websites infringe plaintiff's copyright?
The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. § 106.
"Copy" is defined in the Copyright Act as: "material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 101. "A work is `fixed' ... when its ... sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.
When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F.Supp. 1167, 1179 (N.D.Ill.1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright § 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material ... into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.
 Although this seems harsh, the Copyright Act has provided a safeguard for innocent infringers. Where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages...." 17 U.S.C. § 504(c)(2).
Note that the court explicitly says that the award of damages may be reduced in the event the respondent infringed unintentionally, but that does not mean he didn't infringe at all (quite the opposite, it all but outright states that he did infringe, for no damages would be awarded against someone who did not infringe).
So here we have a court not only saying exactly what I've been saying, but also addressing the "unintentional" aspect, and again siding with my argument.
So the victory is mine!
Nope. You can probably tell.
I'm going to see if I can consult someone who is, because I find this question very interesting.
Because based on your posts I don't trust your opinion. You are citing very detailed court documents. If you don't have the appropriate legal training you might think you know what they are saying but I really don't think you do. I mean, you are of the opinion that lending a computer to someone is a copyright violation, do you think we should trust your legal judgement after expressing that opinion?
You can't use the absurdity of a conclusion as the basis for declaring an opinion about law invalid! To do that would be placing the presumption of the non-absurdity of the law's effects above the courts' opinions of the law (which is not what you're doing here) and the logical deductions that follow from those opinions (which is what you're doing). But the courts are the final arbiters of the law, and that means that their conclusions are "valid" regardless of whether or not we believe they should be, and the stare decisis legal doctrine all but forces courts to adopt the logical conclusions that follow from decisions that have been made in the past, no matter how absurd those conclusions may be. Only the Supreme Court can truly ignore stare decisis, and even it is reluctant to do so.
You do need to show that infringement was unintentional to PROVE THE CASE THAT YOU PUT FORWARD.
Again, you presume that intent matters in a legal sense (i.e., will make the difference in whether or not the plaintiff prevails). But for intent to matter, that would either have to be encoded into the law itself or into the jurisprudence of the law. As I said, mens rea does not apply in the context of violations of civil law! Believe me, I wish it did.
The courts I've thus far cited have already specified what is necessary to show copyright infringement. Intent is absent from their descriptions.
Your issues have no bearing on reality.
Well, see, that is a different question altogether, because for the issues I have to have a bearing on reality, someone would have to sue another for copyright infringement stemming from having copies of their works in their browser's cache. And I'm in full agreement with you: I don't think we're going to see that happen. If we do see it happen, I'll bet we'll see the court do everything in its power to dismiss the case with prejudice on the basis of some legal error on the part of the plaintiff, so as to not contradict the jurisprudence it operates under. However, courts are fickle, and going to court is very much like playing Russian Roulette, so I hope we don't ever have to see a test case for this.
What I meant was that that was how long the "decision" stood for. Okay, maybe not ten minutes, but the ruling by the courts forced the senate to change the rules. What was infringement now no longer is.
But that's not so. You seem to be presuming that the first part of the law you quoted is part of what was changed. But that's not so. The first part of the law, which you rely on for your analysis, preceded the 9th Circuit's decision. See for yourself:
MAI Systems Corp. v. Peak Computer, Inc. wrote:
Section 117 allows "the `owner' of a copy of a computer program to make or authorize the making of another copy" without infringing copyright law, if it "is an essential step in the utilization of the computer program" or if the new copy is "for archival purposes only." 17 U.S.C. § 117 (Supp.1988).
If the part of the law you cite as support for your position were the result of a change made by Congress to address MAI, then the court would not have been able to cite that part of the law in its decision in MAI. This is why I say that the 9th Circuit has turned 17 USC 117(a)(1) into a dead letter.
The part of the law that specifically exempts computer maintenance is the part of the law that was made in response to MAI.
And that is why the jurisprudence I speak of remains intact. The exemption Congress carved out after MAI was a specific one, covering only maintenance of a computer, not a general one.
Not according to the now revised laws.
But this thread is in the business of photography. People come to these particular forum to learn more about how they can improve their businesses. Making the claim that "viewing an image online creates a copy in your cache and this is a copyright violation: therefore if you call infringers thieves your are a hypocrite" is a pointless, needless, ridiculous position to hold. Not only is it factually incorrect, but it does nothing to help photographers build their businesses and fuels the flames of those out there who currently willfully infringe on others copyright and gives them more buzzwords to use.
Interestingly enough, I wasn't even aware of which forum this thread was in until you pointed this out. But yes, with respect to the business of photography, the things I discuss aren't really relevant. But that's true of much of the discussion in this thread (for better or for worse)...
And for me: I seek to undermine the pointless distractions surrounding the issues that always get raised by copyright threads. And this thread has had them all: from claims that CD's are too expensive to embracing flawed digital business models. And when you ask people a couple of simple questions: "why and how?" they can't answer them because the evidence does not back them up.
Your positions, while interesting from a philosophical point of view, do nothing to help photographers. This is a distraction: and to be honest the photographers here really aren't prepared to match wits with someone as smart as you.
Heh. Thanks! *blushes*
Fortunately I have years of internet debate skills behind me and have the ability to roll with the punches. (In simpler words I have no life.)
The issues you raise are philosophical ones: not legal ones, and you are attempting to shoe-horn one to fit the other.
I agree with you here for the most part. But unfortunately, "copyright infringement" is a legal term, not a philosophical one. It is an artifact of law, not an artifact of ethics. There are some here who have attempted to equate an artifact of law with an ethical standpoint, something which I am attempting to point out the absurdity of.
In real life which is the reality that photographers in business are in right now: viewing an image on the internet is not legally an infringement and never will be infringement, and it is not an issue to which they should devote any time at all even if some random person on the internet is calling them a hypocrite for it.
I sure hope you're right. We'll be in for dark times indeed if you're ever wrong on this.
In photography: taking images without the permission of the copyright holder can hurt the photographer in a number of different ways. Non-infringements do not.
No argument there, nor am I intending to say otherwise. All I'm saying is that there are "infringements" (technical, if not practical) which do not hurt the photographer.
Not for me my friend! This thread has already sucked enough life out of me, and I have a product shoot that I've been dragging my heals on that I need to take care of so I'm bowing out. But let the record show that at the end of this long and bitter battle, that it was Banquet Bear that reigned triumphant!!! (Although I'm sure that you will have words to say about that!)
It has indeed been a pleasure, sir! And if you wish to go away feeling triumphant, you most certainly can! For the courts I cite are not the only courts in the world, and I'm quite sure that there exist courts which would agree with your position (which, to be quite frank, I think is the ethically right position).
I just wish the 9th Circuit was one of them.