tag:blogger.com,1999:blog-12505562.post112110537069886805..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: The Way Back Machine and Robots.txtWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger38125tag:blogger.com,1999:blog-12505562.post-1166771882171232402006-12-22T02:18:00.000-05:002006-12-22T02:18:00.000-05:00hppy siteinfo-language,Programming Language,In thi...hppy site<BR/><A HTTP://WWW.INFO-LANGUAGE.COM\ HREF="\" REL="nofollow">info-language</A>,<BR/><A HREF="\" REL="nofollow" HTTP://WWW.INFO-LANGUAGE.COM/PROGRAMMING-LANGUAGE.PHP\>Programming Language</A>,In this online course<BR/><A HTTP://WWW.INFO-LANGUAGE.COM/LANGUAGE-TRANSLATOR.PHP\ HREF="\" REL="nofollow">Language Translator</A>,Dictionaries and Translators<BR/><A HREF="\" REL="nofollow" HTTP://WWW.INFO-LANGUAGE.COM/SIGN-LANGUAGE.PHP\>Sign Language</A>,Links to more information on msn<BR/><A HTTP://WWW.INFO-LANGUAGE.COM/BODY LANGUAGE.PHP\ HREF="\" 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ever you say here is not going to make me med...what ever you say here is not going to make me med.to even think it about it.because this is the best youll ever find.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121441906289766462005-07-15T11:38:00.000-04:002005-07-15T11:38:00.000-04:00I've written a post with some technical speculatio...I've written a post with some technical speculations:<BR/><BR/>I've been writing about this at length over at my my own blog (<A HREF="href=" REL="nofollow">Infothought</A>), with some technical speculations and a counter-argument:<BR/><BR/><A HREF="http://sethf.com/infothought/blog/archives/000877.html" REL="nofollow">Internet Archive DMCA Circumvention Lawsuit</A><BR/><A HREF="http://sethf.com/infothought/blog/archives/000877.html" REL="nofollow">http://sethf.com/infothought/blog/archives/000877.html</A><BR/><BR/><A HREF="http://sethf.com/infothought/blog/archives/000878.html" REL="nofollow">Internet Archive DMCA "Circumvention" - Access vs. Copying</A><BR/><A HREF="http://sethf.com/infothought/blog/archives/000878.html" REL="nofollow">http://sethf.com/infothought/blog/archives/000878.html</A><BR/><BR/><A HREF="http://sethf.com/infothought/blog/archives/000879.html" REL="nofollow">Proposition: OPT-OUT controls are not DMCA access controls</A><BR/><A HREF="http://sethf.com/infothought/blog/archives/000879.html" REL="nofollow">http://sethf.com/infothought/blog/archives/000879.html</A>Seth Finkelsteinhttps://www.blogger.com/profile/14948189729759099429noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121356155236179042005-07-14T11:49:00.000-04:002005-07-14T11:49:00.000-04:00I see problems with your analogies. First, photogr...I see problems with your analogies. <BR/><BR/>First, photographing billboards analogy is plainly <I>NOT</I> the same slavish, wholesale copying of everything an advertising company or commercial entity has created that is the unlimited reproduced and redistributed. It would be a problem, and i'm sure that Mr. Patry would agree if you did go around copying every billboard, compiling it and subsequently making it available for free to everyone on your terms.<BR/><BR/>Second, I'm not sure that the temporary cacheing (as in google's cache) of the latest version of a website really is the same thing either. Most obviously, the cache is temporary, marked up as a cached copy, and does not necessarily contain every element (as the cache usually does not contain stylesheets, images, scripts, etc).<BR/><BR/>Finally, again, I'm not sure that making the copyright holder work harder is really the correct burden (as in the making of silly verify-as-human tricks). Moreover, most websites <I>WANT</I> to be found, spider and indexed. That seems plainly within a custom and usage implied license. That doesn't mean that they want or expect the aforementioned "archiving."Mikehttps://www.blogger.com/profile/13156154447856154779noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121351654350988502005-07-14T10:34:00.000-04:002005-07-14T10:34:00.000-04:00Mmmbeer:What you and Mr. Patry said about an impli...Mmmbeer:<BR/><BR/>What you and Mr. Patry said about an implied license sounds like a good idea. Be interesting to see how the court interprets this case and if they apply such a concept. However, I think your idea of an "archiver exception" is better. There needs to be some definitive fair use coverage for this sort of thing. If plaintiff's counsel can poke holes in an implied licensing defense, and the courts buy into it, a lot of search engines will be in big trouble, as an adverse ruling could also impact their ability to cache web pages (which is also the wholesale copying of sites).<BR/><BR/>I think of this as somewhat like billboards placed along the highway. We can all look at them as we drive by, just like we can surf into websites whether they are indexed or not. A robots tag is like saying "please don't photograph my billboard." Will that stop people from taking photos? To some extent, but you can bet that many still will. Then the question becomes, is photographing that billboard actionable? The answer may depend on the use of the taking, and that's where fair use should be looked at. Indexing and caching websites should be an activity that is encompassed within the fair use doctrine, or else the whole utility of search engines is greatly diminished.<BR/><BR/>The bottom line is: if you don't want crawlers getting into your online content but you want your users to, there is an easy technological cure. Use an image code verification script that requires the user to manually enter a randomly-generated character string. This is commonly used to exclude bots.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121349837172601732005-07-14T10:03:00.000-04:002005-07-14T10:03:00.000-04:00I agree with Kevin Brady on the netiquette remark ...I agree with Kevin Brady on the netiquette remark for the DMCA claim, and I also agree with mmmbeer with his concerns about the copyright issue: one can, after all, defeat an implied license defense to copyright infringement just by saying "No more from now on out" and that is what the denial string request was. There remains, of course, a fair use defense.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121347048557120472005-07-14T09:17:00.000-04:002005-07-14T09:17:00.000-04:00kevin -For starters, that's why I think that the c...kevin -<BR/>For starters, that's why I think that the complaint is technically (as in technologically) deficient. But, the more I think about it, the more I think that what archive.org does IS probably wrong.<BR/><BR/>Conceptually, archive.org's policy seems to place the "burden" on the wrong party. The burden, as I understand it, shouldn't be on the copyright holder to do anything more to prevent the wholesale, exact copying and distribution of everything on a site (adding a robots.txt or calling them or e-mailing them)--except insofar as litigation is required. We, in fact, would expect parties engage in similar "real world" behavior to obtain either consent or license. As noted above, 17 USC has a number of exceptions, but they all seem deficient or simply not applicable.<BR/><BR/>As Mr. Patry suggested, archive.org might get a pass on an implied license of some sort (indeed, one could evidence a number of sites that do similar things: google images, etc). However, I'm not sure that even an implied license would go so far as to permit wholesale copying of everything on a site, in repetition, with unlimited reproduction and distribution rights. That seems a bit beyond what someone might expect another has the rights to do with their property. At least, it would seem that a good lawyer could poke holes in any such defense pretty quickly. More plausible might be a judges more liberal reading of archiver exceptions.<BR/><BR/>Sounds like a law review article waiting to happen.Mikehttps://www.blogger.com/profile/13156154447856154779noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121311867917513052005-07-13T23:31:00.000-04:002005-07-13T23:31:00.000-04:00Circumvention of WHAT? A robots.txt file is merel...Circumvention of WHAT? A robots.txt file is merely netiquette, a means of asking the bots to "please leave this one alone." While most of the major search engines' crawlers abide by this, there are plenty of others that do not. It was never understood that obeying a robots file was mandatory. Will we go down the DMCA slippery slope and see actions against anyone whose crawler "circumvents" someone's robots file? Give me a break.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121301819323818012005-07-13T20:43:00.000-04:002005-07-13T20:43:00.000-04:00I agree with mmmbeer that 108 doesn't cover everyt...I agree with mmmbeer that 108 doesn't cover everything the Internet Archive is doing; my point was that perhaps an amendment to 108 might be an approach. And with such a proposal, we could have a good public debate with policy makers about what types of uses we should permit.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121292856536113982005-07-13T18:14:00.000-04:002005-07-13T18:14:00.000-04:00If the WBM is relying on 17 USC 108, they're going...If the WBM is relying on 17 USC 108, they're going to run into problems regarding copying. While a library or an archive in a traditional sense could conceivably avail themselves of such a thing and then make it open to the public, it's difficult to see how a digital archive like archive.org my equally be safe harbored. The language states pretty plainly that it protects the archiver when reproducing "no more than one copy or phonorecord of a work". We know from some (c) law that computers make many copies in the process. This is especially true for a site that then serves it to the public (retrieving a page once by one client then creates two--one on archive.org and the other in the user's cache).<BR/><BR/>That seems mighty dangerous.Mikehttps://www.blogger.com/profile/13156154447856154779noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121287675008917112005-07-13T16:47:00.000-04:002005-07-13T16:47:00.000-04:00mmmbeer:About 5 years ago, I litigated in the SDNY...mmmbeer:<BR/><BR/>About 5 years ago, I litigated in the SDNY and Second Circuit Register.com v. Verio (for plaintiff).Opt-in versus opt-out was a big issue for terms of use and privacy in that case.<BR/><BR/>With publicly available websites (by which i mean non-password or otherwise protected), though, it seems there should be a healthy implied license, understanding that the license will be defined by a number of things, like custom. I would hope that at least something like the Internet Archive would fall within such a license. Amendment to 17 USC 108 is another option.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121286266602649532005-07-13T16:24:00.000-04:002005-07-13T16:24:00.000-04:00I don't care for the complaint as I think that the...I don't care for the complaint as I think that they got it legally and technically wrong.<BR/><BR/>That said, however, I think that there is something important that is often overlooked in these archiving schemes which does not sit right. Under the terms of WbM's use, the author has to opt-out not opt-in. Whether you like the DMCA or not, that doesn't sound like traditional copyright at all. The WBM isn't just excerpting sections, it is copying verbatim everything and redistributing it. Worse yet, it may be "taking" content and author's may not even know it.Mikehttps://www.blogger.com/profile/13156154447856154779noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1121284383596978472005-07-13T15:53:00.000-04:002005-07-13T15:53:00.000-04:00There is a text version of the complaint at: http:...There is a text version of the complaint at: http://www.ip-wars.net/story/2005/7/12/185442/034<BR/><BR/>On Fred von Lohman's and Jon Weinberg's point, isn't that reducing the definition to the point of absurdity: so long as something is a TPM for one person in the DMCA applies. And then of course it will always be effective for that one person. I had assumed, whether rightly or not, that Congress was referring to a TPM of general application.<BR/><BR/>BTW, when still working on the Hill, a company that shall go nameless but that provides anti-circumvention protection for the motion picture industry asked us to put an anti-circumvention measure in the GATT. We said, but don't you have a patent? They said yes. We said, and isn't what you're complaining about (at that time) an infringement of your patent? They said yes. We said, so why not sue for patent infringement? They said its too expensive. It was a nice lesson that some in the private sector view Congress as a cheap alternative to patent litigation.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.com