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FORUMS Post Processing, Marketing & Presenting Photos The Business of Photography 
Thread started 23 Jun 2012 (Saturday) 07:59
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Disturbing trend in high schools

 
kcbrown
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Jul 21, 2012 17:39 |  #736

banquetbear wrote in post #14748798 (external link)
What legal dictionary did you get this definition from?

I don't have access to Black's Law Dictionary, so other sources will have to do.

The Wikipedia article definition seems to match mine in all the ways that matter:

Wikipedia article on copyright infringement wrote:
Copyright infringement is the unauthorized use of works under copyright, infringing the copyright holder's "exclusive rights", such as the right to reproduce or perform the copyrighted work, spread the information contained within copyrighted works, or to make derivative works.

(emphasis mine)


And the definition of "unauthorized":

Collins World English Dictionary wrote:
unauthorized or unauthorised (ʌnˈɔːθəˌraɪzd)

— adj
not having official permission



So: if you don't have official permission to use a copyrighted work and there is no specific exemption in law for that use, you are engaging in copyright violation if you use, copy, cause to be copied, etc., that work anyway.

Copyright infringement isn't defined, as per the above, as doing something with a copyrighted work that the copyright holder explicitly objects to, it's defined as doing something with it that the copyright holder has not explicitly agreed to. The difference is, perhaps, subtle, but it's of paramount importance. Copyright law takes the typical "allowed except when explicitly denied" characteristic of the law and reverses it, to yield "denied except when explicitly allowed". If you don't have explicit permission to use or copy a copyrighted work then you are infringing on copyright if you use or copy the work anyway, unless that use or copying is explicitly allowed as an exception in the law itself.

And someone who views an (unbeknownst to him) illicit copy of an image with his web browser is using that work (and, through the operation of his web browser, making copies) without permission. That is the essence, the very definition, of copyright infringement.

And lack of intent is not an affirmative defense against a charge of copyright infringement, so as per the law and how it's interpreted by the 9th Circuit, such an infringement could easily be upheld as such by the courts. It is thus only the magnanimity of the copyright holders that keeps such a thing from being manifested in the real world as an infringement.


Again, in my view, the browser situation above isn't a real problem (at least in terms of ethics -- most certainly it's not currently a practical problem as you note), but not because I don't view such a thing as copyright infringement, but because I don't regard that kind of copyright infringement as being wrong.


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banquetbear
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Jul 22, 2012 08:33 |  #737

kcbrown wrote in post #14749684 (external link)
That case already exists. Like I said, the circuit courts are split on the issue (meaning, they differ in their opinion).

From MAI Systems Corp v Peak Computer, Inc. (external link):

(emphasis mine)

The court views a copy in RAM as a "fixed copy" and therefore, views the unauthorized act of copying a work from another source into RAM, even only temporarily, as a copyright violation. And that is precisely what your web browser does during its operation: it copies the works in question from another source into RAM (and often onto disk, but that is not explicitly addressed by the above). Furthermore, that it does so is not merely incidental to its operation, it is the direct result of the user's intent to view a web site and, therefore, the content on it. Viewing an image is use of the image. The only way that would not constitute a copyright violation is either for the user to get prior permission from the copyright holder to view the image, or for there to be an explicit exemption in law. And there is no explicit exemption in law.

...your not a lawyer, are you? How much of what you just wrote do you actually understand?

From the Wikipedia on this case: (external link)

MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), was a case heard by the United States Court of Appeals for the Ninth Circuit which addressed the question of whether or not the loading of a software program into RAM by a computer repair technician makes a copy of the software that is a potential violation of copyright law. The court held that it did, although the United States Congress subsequently enacted an amendment to 17 U.S.C. § 117 to specifically overrule this holding in the circumstances of computer repair.

http://www.law.cornell​.edu/uscode/text/17/11​7 (external link)

(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

(c) Machine Maintenance or Repair.— Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if—
(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.

All your other arguments fall in the face of that, at least for people who live in the 9th Circuit's jurisdiction, which covers Washington, Oregon, California, Montana, Idaho, Nevada, and Arizona. I'm in California, so the 9th Circuit's position is binding on me.

The problem with amateur analysis on the internet on relatively complex topics can no better be seen than in your two posts.

Quite simply, you are wrong. You were wrong on the details about the case (it was intentional infringement, not accidental) you read the decision wrong, and ultimately you were wrong about the state of the law as it is right now. As a result of this court ruling Congress changed the law. It worked exactly as I said it would. Information in a cache is not copyright infringement.

GAME SET MATCH BANQUET BEAR.

I encourage you to read the decision for yourself. There are other juicy bits in there as well. For instance, they conclude that loaning a computer to someone else constitutes copyright violation with respect to the copyrighted works on the computer that would be loaded into RAM during operation of that computer. Since the operating system itself is a copyrighted work and is explicitly addressed by the decision, that means that at a minimum, loaning a computer to someone else constitutes copyright violation with respect to the copyright on the operating system, unless the license agreement covering it explicitly allows such loans.

Are you a lawyer? Quite frankly, I would advise everyone to take the above paragraph with a grain of salt: because I really don't think you understand what you were reading.

Having them in your cache is, per MAI, legally regarded as a copyright violation because the images are "fixed" in the medium of the (RAM) cache.

Maybe for about ten minutes: but not any more.

That there is "no problem" doesn't mean the infringement isn't happening anyway.

Its not infringement.

Breaking the law without harm to anyone else and without a police officer seeing it or objecting to it is "no problem", but it is a violation of the law all the same. Similarly, infringing someone's copyright when the copyright holder does not know about it and would not object, or knows about it and does not object to it is still copyright infringement all the same. That's because copyright hinges on permission (authorization)

You are forgetting, of course, that it is not infringement.

See above for the legal opinion, which while it's being applied specifically to software, is binding precedent in the 9th circuit for anything that is copied into RAM.

Except of course, that it isn't infringement.

No, I don't personally treat is as a problem, but I still treat it as a copyright violation.

Well you don't have to anymore, because it isn't an infringement.

But remember, I'm one of those people who subscribes to a "secular moral philosophy". My opinion is that it's not a problem. On that I agree with you. But where I disagree with you is on whether or not the acts in question are copyright violations. The case I cite above says they are (though it does say that archival copies are not copyright violation, so multiple backups probably isn't a copyright violation, and therefore I retract that as an example of one).

Your personal "secular moral philosophy" is really irrelevant to how photography businesses work.

What I'm doing is taking the fact that those are copyright violations as defined by the 9th circuit court itself and using them to show that the logic of moral absolutism which defines all copyright infringement as "wrong" fails in the face of them.

They are not infringements.

Do I think it's a real-world problem? No. But that's because I do not view all copyright infringements as wrong.

Yeah, but of course they are not infringements.

No, you didn't say that. I brought that up as an equivalence. What's the difference between violating the law and violating copyright for the purposes of this discussion? They're both wrong, aren't they?

By the way, if my interpretation of what you've said is incorrect, then you have my apologies, and I could probably do with a more precise explanation of what you meant.

Apology accepted. And thanks for the willingness to concede when the evidence has not been on your side: its been a pleasure to debate you.


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kcbrown
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Jul 22, 2012 15:56 |  #738

banquetbear wrote in post #14751603 (external link)
...your not a lawyer, are you? How much of what you just wrote do you actually understand?

From the Wikipedia on this case: (external link)


http://www.law.cornell​.edu/uscode/text/17/11​7 (external link)

Did you read the decision in full? The decision explicitly acknowledges both of those things in the first section of the law you quoted (17 USC 117(a)(1) and (a)(2)) and proceeds to declare a copy in RAM as "fixed" and, therefore, a copyright violation anyway.

The amended section of 17 USC 117 that moots MAI is not the first section of the law you quoted, it's the second:

17 USC 117 wrote:
(c) Machine Maintenance or Repair.— Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if—
(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.
(d) Definitions.— For purposes of this section—
(1) the “maintenance” of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and
(2) the “repair” of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.


So my original concerns stand unaddressed, because using a browser does not constitute "maintenance" of a computer system. Nor does it address the other findings in MAI, such as the finding that lending a computer constitutes copyright infringement.

Which is to say, the change to the law does not moot MAI in full, it only moots the decision with respect to maintenance of machines. The rest of the jurisprudence remains intact.


The problem with amateur analysis on the internet on relatively complex topics can no better be seen than in your two posts.

Quite simply, you are wrong. You were wrong on the details about the case (it was intentional infringement, not accidental)

I don't believe I ever claimed the case was about accidental infringement, only that it is the jurisprudence that governs temporary copies that are made in the course of operating a computer program (to be precise, loading of an operating system from disk is an operation that is accomplished by the firmware of the machine, so the machine is already running a program which has the purpose of loading the operating system from disk. And that makes MAI relevant to the question of programs creating temporary copies in RAM).

In essence, it appears MAI makes 17 USC 117 (a)(1) a dead letter in 9th Circuit jurisprudence.

you read the decision wrong, and ultimately you were wrong about the state of the law as it is right now. As a result of this court ruling Congress changed the law. It worked exactly as I said it would. Information in a cache is not copyright infringement.

GAME SET MATCH BANQUET BEAR.

Oh, but I'm not wrong (at least, not necessarily!). See above. While I agree that the infringement in the case of MAI was intentional and not accidental, the law itself makes no provision for exempting accidental infringement. Nor does any jurisprudence that I'm aware of (and I've looked, to no avail).

So it's possible that you're right, but I've seen no evidence that copyright jurisprudence exempts unintentional infringement from qualifying as copyright infringement. And because copyright law is a "disallowed except when explicitly allowed" type of law, it follows that when there is uncertainty, infringement should be assumed.

In fact, MAI describes exactly what is needed to prevail in a copyright infringement case:

9th Circuit decision, MAI Systems Corp. v Peak Computer, Inc. wrote:
To prevail on a claim of copyright infringement, a plaintiff must prove ownership of a copyright and a "`copying' of protectable expression" beyond the scope of a license.

The 10th Circuit, in Gates Rubber Co. v. Bando Chemical Industries, Ltd. (external link), appears to agree:

10th Circuit decision, Gates Rubber Co. v. Bando Chemical Industries, Ltd. wrote:
In order to prevail on a claim of copyright infringement, the plaintiff must show: (1) ownership of a valid copyright, and (2) copying by the defendant of protected components of the copyrighted material. Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991); Autoskill v. National Educational Support Systems, Inc., 994 F.2d 1476, 1487 (10th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 307, 126 L.Ed.2d 254 (1993). A Certificate of Registration, if timely obtained, constitutes prima facie evidence of the validity of the copyright. 832*832 17 U.S.C. § 410(c); Autoskill, 994 F.2d at 1487. Once the presumption pursuant to 17 U.S.C. § 410(c) is established, the defendant has the burden of overcoming it. Autoskill, 994 F.2d at 1487.


And that's all. Nothing more need be shown to prevail. One needn't show that the infringement was intentional (else the decisions in question would have mentioned that as being explicitly exempting).

In any case, in the scenarios I describe, the infringement is both intentional and unintentional. Which is to say, the user most certainly intends to view the image, but is unaware that the image he's viewing is visible without the copyright holder's consent. Another variation of it has the infringement being purely unintentional. How much intention there is can vary from complete (e.g., the person [I]knows that the image is one for which the copyright holder has not authorized internet reproduction) to absolutely none (e.g., when the browser redirects to a site the person didn't intend to visit at all).

Are you a lawyer? Quite frankly, I would advise everyone to take the above paragraph with a grain of salt: because I really don't think you understand what you were reading.

That's always a possibility, of course. In fact, even if I [I]were a lawyer, that would be a possibility!

Maybe for about ten minutes: but not any more.

Actually, your browser's disk cache fixes the copy for quite a bit longer than that, typically. And note that, unlike the potential objection that a copy in RAM disappears when power is removed, the same is not true of a copy on disk, so your browser's disk cache is worse from a copyright infringement standpoint. If a copy in RAM is "fixed", then a copy on disk [I]most certainly is.

But the amount of time isn't relevant. That a copy was made without the copyright holder's explicit consent [I]is. And that the work is being copied as a necessary step in [I]using it (viewed, in this case) without the copyright holder's explicit consent may be as well (which I bring up because there may exist jurisprudence which says that incidental copying of the work that yields temporary copies and does not result in use of the work is not considered infringement, though I do not know of such jurisprudence myself -- such a thing wasn't mentioned as an exemption in the cases I cite above, however).

You need to keep in mind that showing [I]mens rea is not necessary to show liability as regards infractions of United States civil law.


Your personal "secular moral philosophy" is really irrelevant to how photography businesses work.

Most certainly it's irrelevant to that. You'll get no disagreement with me on it. What's relevant there is the opinion of the individual photographer.

However, the discussion here has involved more than just that, it's involved the morality of copyright infringement. And as I'm sure you know, there have been some claims that [I]all copyright infringement is [I]wrong. It is those claims I seek to undermine.

Apology accepted. And thanks for the willingness to concede when the evidence has not been on your side: its been a pleasure to debate you.

Likewise! But the debate continues (which means more fun for the both of us!). :-D


"There are some things that money can't buy, but they aren't Ls and aren't worth having" -- Shooter-boy
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Nikon: D750, D600, 24-85 VR, 50 f/1.8G, 85 f/1.8G, Tamron 24-70 VC, Tamron 70-300 VC.

  
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banquetbear
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Jul 22, 2012 22:04 |  #739

kcbrown wrote in post #14753087 (external link)
Did you read the decision in full? The decision explicitly acknowledges both of those things in the first section of the law you quoted and proceeds to declare a copy in RAM as "fixed" and, therefore, a copyright violation anyway.

...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.

The amended section of 17 USC 117 that moots MAI is not the first section of the law you quoted, it's the second:

Which is why I quoted it.

So my original concerns stand unaddressed, because using a browser does not constitute "maintenance" of a computer system.

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.

Nor does it address the other findings in MAI, such as the finding that lending a computer constitutes copyright infringement.

Are you giving us a legal opinion here? Because I'm pretty sure that you are wrong on the law here: yet again.

Which is to say, the change to the law does not moot MAI in full, it only moots the decision with respect to maintenance of machines. The rest of the jurisprudence remains intact.

And yet, the law says this:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

The creation of the cache is an essential step: the net wouldn't work in any other way. Its not an infringement.

Oh, but I'm not wrong (at least, not necessarily!). See above. While I agree that the infringement in the case of MAI was intentional and not accidental, the law itself makes no provision for exempting accidental infringement.

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. 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.

So it's possible that you're right,

Thats because I am.

but I've seen no evidence that copyright jurisprudence exempts unintentional infringement from qualifying as copyright infringement.

117 specifically exempts cases (in software) where the creation of a copy has to happen in order for the software to work.

And because copyright law is a "disallowed except when explicitly allowed" type of law, it follows that when there is uncertainty, infringement should be assumed.

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.

In fact, MAI describes exactly what is needed to prevail in a copyright infringement case:

The 10th Circuit, in Gates Rubber Co. v. Bando Chemical Industries, Ltd. (external link), appears to agree:

Are you a lawyer or not? 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?

And that's all. Nothing more need be shown to prevail. One needn't show that the infringement was intentional (else the decisions in question would have mentioned that as being explicitly exempting).

You do need to show that infringement was unintentional to PROVE THE CASE THAT YOU PUT FORWARD.

In any case, in the scenarios I describe, the infringement is both intentional and unintentional. Which is to say, the user most certainly intends to view the image, but is unaware that the image he's viewing is visible without the copyright holder's consent. Another variation of it has the infringement being purely unintentional. How much intention there is can vary from complete (e.g., the person [I]knows that the image is one for which the copyright holder has not authorized internet reproduction) to absolutely none (e.g., when the browser redirects to a site the person didn't intend to visit at all).

Your issues have no bearing on reality.

Actually, your browser's disk cache fixes the copy for quite a bit longer than that, typically.

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 the amount of time isn't relevant. That a copy was made without the copyright holder's explicit consent [I]is.

Not according to the now revised laws.

And that the work is being copied as a necessary step in [I]using it (viewed, in this case) without the copyright holder's explicit consent may be as well (which I bring up because there may exist jurisprudence which says that incidental copying of the work that yields temporary copies and does not result in use of the work is not considered infringement, though I do not know of such jurisprudence myself -- such a thing wasn't mentioned as an exemption in the cases I cite above, however).

And as cited above: if the step is required for the software to work, it is not an infringement.

You need to keep in mind that showing [I]mens rea is not necessary to show liability in the United States as regards civil law infractions.

Irrelevant.

Most certainly it's irrelevant to that. You'll get no disagreement with me on it. What's relevant there is the opinion of the individual photographer.

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.

However, the discussion here has involved more than just that, it's involved the morality of copyright infringement. And as I'm sure you know, there have been some claims that [I]all copyright infringement is [I]wrong. It is those claims I seek to undermine.

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. :D 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. 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.

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.

Likewise! But the debate continues (which means more fun for the both of us!). :-D

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!)


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kcbrown
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Jul 23, 2012 01:04 |  #740

banquetbear wrote in post #14754560 (external link)
...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.

Thats because I am.

:lol:

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 (external link):

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.[5] 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.

.
.
.

[5] 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).

(emphasis mine)

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! :lol:

Are you a lawyer or not?

Nope. You can probably tell. :lol:

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'[5] 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).[6]

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.

See above.

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. :D

Heh. Thanks! *blushes* :oops:

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.)

Same here! :-D

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!)

:lol:

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. :(


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klimraamkosie
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Sep 21, 2012 22:26 |  #741

MJPhotos24 wrote in post #14623497 (external link)
Photography is heading the way of music, sorry to the old timers but things are changing. Complaining about it does nothing and definitely not going to change a thing. The "trend" (if you can call something that has been evolving for 50+ years a trend) will continue to grow and get worse as technology progresses. Seen it in music first hand and you see it in photography now a few years behind. Sure there will always be bands that make money, just like always be photographers who do as well, but the old way just isn't the same anymore and not going to go back!

Not really comparable. Music is (as well as TV/Movies) becoming a lot easier to come by than before. The industry is changing (in a great way) to combat pirating. Making it easier to get the movies/music in a legitimate way vs. pirating it.

This does not at all apply to photography. It's extremely easy to pay for the photos you want.

Those who still choose the illegal route won't change their minds except if they are challenged with legal ramifications.

What I say to photographers worried? Just keep doing your best and reacting to infringement in the best ways possible.

(And please continue complaining, it raises the problem with others who don't think it about it)


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HappySnapper90
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Sep 21, 2012 23:08 |  #742

klimraamkosie wrote in post #15026254 (external link)
Not really comparable. Music is (as well as TV/Movies) becoming a lot easier to come by than before. The industry is changing (in a great way) to combat pirating. Making it easier to get the movies/music in a legitimate way vs. pirating it.

This does not at all apply to photography. It's extremely easy to pay for the photos you want.

I disagree. It's probably easier to buy and pay for music than it is for photography with the popularity of itunes. Photography? Not centrally located for creative photography for the most part having to go to individual photographer's websites. There you may get an option to pay for a photo or you may have to email the photographer, etc. Some photographers won't sell via the internet and will only mail prints.




  
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klimraamkosie
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Sep 22, 2012 13:48 |  #743

HappySnapper90 wrote in post #15026451 (external link)
I disagree. It's probably easier to buy and pay for music than it is for photography with the popularity of itunes. Photography? Not centrally located for creative photography for the most part having to go to individual photographer's websites. There you may get an option to pay for a photo or you may have to email the photographer, etc. Some photographers won't sell via the internet and will only mail prints.

Yes, that makes it very easy (all the options of paying for a photo you mention). You can't go to an individual musicians (that are on a label) and just buy their music there...

Not centrally located? If you can find the photo to copy in the first place then there's no validity to your "centrally located" argument. in the case of photography it's good that it's not centrally located. You have a lot more control over your work.

P.S. Itunes isn't that easy to use if you're in a different country than this one. And as a desktop application is generally very limited. I really prefer using amazon, but it's still not a GREAT experience. It doesn't come close to the experience that you can have with most photographers and buying a photo from them.


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RDKirk
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Sep 22, 2012 14:12 as a reply to  @ klimraamkosie's post |  #744

RDKirk's Iron Law of Copyright Discourse:

"As any discussion about any facet of copyright grows longer, the probability of the RIAA being used as an example in arguments opposing copyright and then dominating the discussion approaches 1."




  
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