A Legal Ruling on Web Browsing and Copyright Violation
A short thread from comp.org.eff.talk
The issue of Web Browsing and copyright is a thorny one, and not limited to the issues that came up in my encounter with the NRC. The Church of Sc**nt*l*gy was involved last winter in a lawsuit against one of their opponents who had managed to gain acc
ess to computer files of church policies and doctrines and then posted them in Usenet. They sued, and the judge found in their favor.
Discussion of the case has been going on for a long time, and it has ranged far and wide in Usenet. This particular religious organization draws quite a bit of spirited "debate" from both sides. I am interested only in how the issue of copyright and br
owsing is effected by the decision in this case.
This document includes the text of some of the most recent discussion of the issue in comp.org.eff.talk.
The messages included here pick up in the middle of a thread that had been going on for months, and they are:
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From: mech@eff.org (Stanton McCandlish)
Newsgroups: alt.religion.scientology,comp.org.eff.talk
Subject: Whyte's decision on browsing - clarification of sorts
Date: 3 Oct 1995 19:10:40 -0500
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I too remain somewhat concerned about Judge Whyte's ruling that Erich
must not engage in "'browsing' the text of a copyrighted work resident on
another computer through on-screen examination".
One of our boardmembers opines that the probable reason for this was that
browsing via WWW necessarily entails making a copy (from the server to
your client), and judge Whyte wants to keep things calm, so "don't copy,
in any way" could be the message here. If that's true, perhaps Whyte is
being very perceptive, and has saved Erlich from YACOSL (Yet Another
Church of Scientology Lawsuit). Enough unclear legal ideas are being
tested, in very rushed and poorly controlled fashion, in these cases
already; the last thing we need is a quick decision being reached about
what constitutes a "copy" for copyright purposes in a client-server
browsing environment.
See, my concern lies with the fact that this copying has *not* been found to
be "copying" for the purpose of copyright law. It is simply not a
settled issue at all. What about if both machines are on your own LAN?
Judge Whyte, disturbingly, and unlike Judge Kane, does not seem to
recognize any general fair-use right of individuals to copy material
copyrighted by others even if that copying is done strictly for personal
use - xerox a cartoon from the paper and post it on your cork board, go
to prison? (OK that's a reductio ad absurdum, but the point is made) - he
cites only cases in which special circumstances apply, such as taping TV
shows to "time-shift" your viewing). I tend to think Judge Whyte would
say "no" even if both machines were on the same LAN.
This ultimately goes to the issue of "Is it a copy, for copyright law
purposes, when you copy a work from hard disk to memory to view it?"
This issue has been litigated in the past, and I think the server-client
issue will be as well.
What bugs me, is that Whyte seems ready to decide the issue for himself
in a bench ruling on a small matter that doesn't have anything to do with
that issue. I'm not sure this is a good idea, to say the least.
Whyte's ruling doesn't really say much about the generality - it only
bars *Erlich* from browsing any of the proscribed documents, during the
case - and it doesn't have "official" precedent value, but (and this is
the root of my concern) other judges may still look at this when forming
their own rulings, and think "well, I guess it's OK to restrict people
from reading on the net" in circumstances not nearly so narrow as this
one, if they do not fully understand Whyte's reasoning (this is not a
stretch of the imagination, since I don't think *anyone* but Whyte fully
understand's Whyte's reasoning here - otherwise this conversation would
not have happened.)
I'm not a lawyer, so I can't say whether or not Whyte's ruling on this
matter is also of questionable constitutionality as a free speech
violation, but I tend to doubt it. Gag orders have a long history, and
this is quite a bit less than a gag order of the more absolute variety.
I also think Whyte unneccessarily demonizes the net, and may fail to
understand all the implications of his ruling. And this initial ruling may
well heavily inform his decision in the real case.)
In his defense, I think he understands a lot more about the net than most
other judges, and it took a lot of guts to question the constitutionality
of his own TRO and writ of seizure, and rescind them. That just doesn't
happen usually.
At any rate, I'm certainly happier with Kane's rulings, even if they
don't appear to be quite as thorough or carefully researched. Whyte may
have researched his ruling into the mire, and he seems to get lost in
nitpicky details that aren't really relevant to the heart of the matter
in some parts of his ruling.
[DISCLAIMER: This is a personal, and non-legal, opinion, and does not
represent the views of EFF or anyone else.]
--
Stanton McCandlish
mech@eff.org
Electronic Frontier Foundation
Online Activist
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From: sgs@access5.digex.net (Steve Smith)
Newsgroups: alt.religion.scientology,comp.org.eff.talk
Subject: Re: Whyte's decision on browsing - clarification of sorts
Date: 5 Oct 1995 03:12:55 -0400
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In article <199510040007.UAA29219@eff.org>,
Stanton McCandlish wrote:
>I too remain somewhat concerned about Judge Whyte's ruling that Erich
>must not engage in "'browsing' the text of a copyrighted work resident on
>another computer through on-screen examination".
There was an article a few months back in CACM about future directions
in copyright law. One of the subjects that they touched on was the
"copying" involved in browsing a text file.
Apparently, there was some kind of panel convened by publishers that
recommended that browsing be considered "copying" for the purpose of
determining copyright violation. There were a number of other worms in
this particular set of recommendations -- not surprising, from
conventional publishers feeling threatened by the Net.
Judge Whyte is simply ruling at the conservative end of copyright law.
Not surprising, seeing as he was "venue shopped" by the Co$. They did
their homework.
--
Steve Smith Agincourt Computing
sgs@access.digex.net (301) 681 7395
"Truth is stranger than fiction because fiction has to make sense."
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From: wbarwell@Starbase.NeoSoft.COM (William Barwell)
Newsgroups: alt.religion.scientology,comp.org.eff.talk
Subject: Re: Whyte's decision on browsing - clarification of sorts
Date: 8 Oct 1995 00:03:06 -0500
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Xref: cmcl2 alt.religion.scientology:117167 comp.org.eff.talk:65468
In article <4500hn$k48@access5.digex.net>,
Steve Smith wrote:
>In article <199510040007.UAA29219@eff.org>,
>Stanton McCandlish wrote:
>
>>I too remain somewhat concerned about Judge Whyte's ruling that Erich
>>must not engage in "'browsing' the text of a copyrighted work resident on
>>another computer through on-screen examination".
>
>There was an article a few months back in CACM about future directions
>in copyright law. One of the subjects that they touched on was the
>"copying" involved in browsing a text file.
>
>Apparently, there was some kind of panel convened by publishers that
>recommended that browsing be considered "copying" for the purpose of
>determining copyright violation. There were a number of other worms in
>this particular set of recommendations -- not surprising, from
>conventional publishers feeling threatened by the Net.
>
>Judge Whyte is simply ruling at the conservative end of copyright law.
>Not surprising, seeing as he was "venue shopped" by the Co$. They did
>their homework.
Oh boy. Brain dead special intrests wringing their hands and rolling
their eyes and trying to get the powers that be making bad law to
help them feather their nests. Greedy idiots.
What is CACM? Where can we keep up with this crap?
These idiots will ruin us faster than a dozen cults like Stupidology.
Idiots with a narrow, poorly thought out agenda.
Sickening.
Pope Charles
SubGenius Pope Of Houston
Slack!
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From: tilman@berlin.snafu.de (Tilman Hausherr)
Newsgroups: alt.religion.scientology,comp.org.eff.talk
Subject: Re: Whyte's decision on browsing - clarification of sorts
Date: Wed, 04 Oct 1995 20:04:36 GMT
Organization: Xenu's Ranch
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Xref: cmcl2 alt.religion.scientology:116483 comp.org.eff.talk:65225
In <199510040007.UAA29219@eff.org>, mech@eff.org (Stanton McCandlish)
wrote:
>I too remain somewhat concerned about Judge Whyte's ruling that Erich
>must not engage in "'browsing' the text of a copyrighted work resident on
>another computer through on-screen examination".
Erlich has a big problem - he uses an offline reader. My offline reader
(not the same as Dennis uses) can be configured to load only specific
posts, thru selecting of subjects headers, or to download everything,
except large posts. If Erlichs reader is like this, then it might happen
that Erlich gets a piece of copyrighted work from the internet even if
he wants to respect the courts order: Erlich is under constant jeopardy
of being in contempt of court.
I think Whyte's order should focus on "active copying", i.e. "posting"
and not "retrieving". From Judge Kanes order I understand that a
researcher has the right to possess copyrighted works. Dennis *is* a
researcher. Every regular poster / lurker here qualifies as a
researcher.
Tilman
--- Tilman Hausherr [KoX; awards: DB, SP decl. by Koos]
biz: tilman@sietec.de URL:http://www.sietec.de/ (company page)
home: tilman@berlin.snafu.de URL:http://www.snafu.de/~tilman/
Resistance is futile. You will be enturbulated. Xenu always prevails.
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From: cptnerd@access4.digex.net (Captain Nerd)
Newsgroups: alt.religion.scientology,comp.org.eff.talk
Subject: Re: Whyte's decision on browsing - clarification of sorts
Followup-To: alt.religion.scientology,comp.org.eff.talk
Date: 8 Oct 1995 04:45:41 -0400
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In article <457m2a$3eu@starbase.neosoft.com>,
William Barwell wrote:
>
>Oh boy. Brain dead special intrests wringing their hands and rolling
>their eyes and trying to get the powers that be making bad law to
>help them feather their nests. Greedy idiots.
>
>What is CACM? Where can we keep up with this crap?
>These idiots will ruin us faster than a dozen cults like Stupidology.
>
>Idiots with a narrow, poorly thought out agenda.
>
>Sickening.
>
CACM = Communications of the ACM = magazine for members of
ACM = Association for Computing Machinery
I think I remember getting this issue. I only skimmed thru it,
the ACM folks can be very academic in their phraseology, if you
get my drift. It wouldn't surprise me if they had something in
there from some publishing firms. CACM tries to be balanced in
covering issues, to the best of my knowlege they aren't involved
in $cientology at all. Publishers, on the other hand, like the
Simon and Shuster/ Prentice-Hall/Addison Wesley folks would
definitely be concerned about copyright law in electronic media.
Guess I'll have to dig out that issue from my heap^H^H^H^Hfiling
system.
Cap.
--
===============================================================================
= Mail: cptnerd@access.digex.net ="Stupid, stupid rat creatures!"=
= Web: http://www.access.digex.net/~cptnerd/ = Bone =
===============================================================================
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From: jbyrd@tiac.net (Jim Byrd)
Newsgroups: alt.religion.scientology,comp.org.eff.talk
Subject: Re: Whyte's decision on browsing - clarification of sorts
Date: Sun, 08 Oct 1995 14:02:14 GMT
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wbarwell@Starbase.NeoSoft.COM (William Barwell) wrote:
>
>What is CACM?
CACM is the journal "Communications of the ACM".
ACM is the Association for Computer Machinery, the primary
professional association for computer professionals in the US.
ACM publishes several other journals, but CACM is the most important
one.
Besides discussing important technical developments (they originally
published the RSA encryption algorithm several years ago), they
discuss issues of legalities, computer science education, and
discussions of where the field is going.
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From: ckaun@nyx10.cs.du.edu (Carl Kaun)
Newsgroups: alt.religion.scientology,comp.org.eff.talk
Subject: Re: Whyte's decision on browsing - clarification of sorts
Date: 8 Oct 1995 06:58:33 -0600
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In article <457m2a$3eu@Starbase.NeoSoft.COM>,
William Barwell wrote:
>In article <4500hn$k48@access5.digex.net>,
>Steve Smith wrote:
>>In article <199510040007.UAA29219@eff.org>,
>>Stanton McCandlish wrote:
>>
>>>I too remain somewhat concerned about Judge Whyte's ruling that Erich
>>>must not engage in "'browsing' the text of a copyrighted work resident on
>>>another computer through on-screen examination".
>>
>>There was an article a few months back in CACM about future directions
>>in copyright law. One of the subjects that they touched on was the
>>"copying" involved in browsing a text file.
>>
>>Apparently, there was some kind of panel convened by publishers that
>>recommended that browsing be considered "copying" for the purpose of
>>determining copyright violation. There were a number of other worms in
>>this particular set of recommendations -- not surprising, from
>>conventional publishers feeling threatened by the Net.
>>
>>Judge Whyte is simply ruling at the conservative end of copyright law.
>>Not surprising, seeing as he was "venue shopped" by the Co$. They did
>>their homework.
>
>Oh boy. Brain dead special intrests wringing their hands and rolling
>their eyes and trying to get the powers that be making bad law to
>help them feather their nests. Greedy idiots.
>
>What is CACM? Where can we keep up with this crap?
CACM is the 'communications of the association for computing machinery',
the default professional society for computer scientists. i haven't
been keeping up on my reading, or i mighta noticed this issue. i have
generally thought ACM to be pretty stodgy, and i prefer the IEEE
societies for perspective.
>These idiots will ruin us faster than a dozen cults like Stupidology.
>
>Idiots with a narrow, poorly thought out agenda.
>
>Sickening.
Slack!
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