Re: SFLC's GPL court enforcement -- track record

[Tim Smith]

In article <WGqik.3221$%f.2792@fe091.usenetserver.com>,
 Hyman Rosen <hyrosen@mail.com> wrote:
> Alexander Terekhov wrote:
> > How could one possibly make an online distribution server
>  > being responsible for files delivery fall outside the scope
>  > of exclusive rights
> 
> Downloading from anywhere can cause pieces of a file to get
> copied from one computer to another before they reach you.
> Why doesn't that fall outside the scope of exclusive rights?
> 
> I imagine it's just inherent in the properties of digital
> objects and network transmissions.

Hypothetical:

   Party X puts a file up on a publicly accessible server and makes its 
   location known.  (For example, X puts it on their HTTP server, with 
   a link from the front page to the download).

   Party Y downloads the file.  The result is a copy of the file on Y's 
   hard disk.

Question:

   Who made that copy and/or distributed that copy?  X or Y?

Either answer has some problematic implications.

Suppose it is Y that counts as having made that copy.  First of all, 
this is certainly going to annoy the big media companies.  It would mean 
that people who happen to store their music and movie files on their 
server, where others happen to download them, are not making copies.

While some might like this answer, just because it annoys the big media 
companies, it would have the same problem for GPL software.  Someone 
could put a binary up on a server, and say that since they aren't the 
one copying and distributing it--that's the downloaders--they have no 
GPL obligation to provide source.

So, saying Y is the one doing the copying and distributing is not going 
to make copyright holders happy, whether they are big media companies, 
or free software developers.

How about the other possibility.  X is the one making and distributing 
the copy.

That works out better for the media companies.  File sharers, at least, 
whose shared files are actually downloaded, will be liable.

But it only partly resolves the problem for free software.  If I take 
some GPL software that I do not own the copyright for, and put it on my 
server, then all is well.  I'm the one copying and distributing when 
people grab it from my server, so I have to follow GPL.  We are all 
happy now, right?  Right...except notice that this is only where I am 
not the copyright holder.

Suppose the copyright holder puts their own free software up on their 
server?  In other words, X is the copyright holder.  Y downloads it.
Y has not made a copy.  Y has not distributed the software.  Y has not 
done *anything* that requires copyright permission.  But many free 
software licenses (including GPL) are based upon the recipient needing 
copyright permission to obtain the copy.

If the answer to my question is that X is doing the copying and 
distributing, that is not going to make free software makers happy.

I think the answer we'd need to make everyone happy is for X to be doing 
the distributing and Y to be doing the copying.  That would make big 
media happy, because then both the sharer and the downloader are 
infringing copyright.  It would make free software software makers 
happy, because the downloaders will need copyright permission, and so 
have to accept the free software license.

I haven't thought deeply about this, but my first impression is that 
this should be addressed legislatively.  The copyright laws should be 
amended to say that:

1. Making a file available on a download server (including P2P servers) 
counts as a distribution of the file to those who normally have access 
to the server for receiving files, and

2. Downloading a file from a server counts as the downloader making a 
copy.

Alternatively, perhaps the right to make a file available via download, 
and the right to download the file from a given server, should be new 
exclusive rights, in addition to the current copyright exclusive rights 
(copying, making derivative works, distribution, displaying, and 
performing).  



-- 
--Tim Smith