Re: Barriers to an ASP loophole closure
On Thursday 13 March 2003 03:56 pm, Thomas Bushnell, BSG wrote:
> Jeremy Hankins <email@example.com> writes:
> > My understanding (IANAL, etc) is that public performance could cover
> > this sort of thing (the problem would be scaling it back to cover only
> > what we want it to). Are you simply objecting to that on principle,
> > or is there some reason people shouldn't or couldn't do that?
> I don't think there's any reason to think that constitutes public
> performance. Is there *any* case law?
It does seem logical, though...
Consider a DVD movie (I only specify DVD because it is more obviously a
software program than a VHS movie is). If you "run the program" in the
privacy of your own home, copyright doesn't apply, because that's "fair use".
But if you play it on a big screen at the park, you need further permissions
and may have to pay royalties.
Now, what if I played it through my web server? I don't give you the DVD and
I don't let you access the menu directly, so I am not distributing the work
through the web, I'm just playing a video using some streaming video format.
Now that is clearly public performance, isn't it? Would anyone seriously
argue that fair use lets me do that?
(It might matter whether I charge you for access or not, but I don't think
so. The Internet has already been likened to a broadcast medium, and playing
via television transmitter is certainly considered public performance).
If I did let you access the menu, that wouldn't be any better, would it?
Then the program would be more interactive, and therefore more closely
resemble an RPC call.
As for scaling it back to what we want -- that's easy, you just include a new
section to cover what sorts of public performance rights are granted and
which are not. And as a condition, you include the mandatory source-offer
(just as with re-distribution, but perhaps with more "reasonable terms" for
web services. That solves the problem rather neatly, and without so many
>From a pragmatic POV, anyone who's running a web service for the public at
large should not be suffering from the "desert island" or "chinese dissident"
question -- providing source packages should not strain their resources at
More dangerous is probably the question of program versus data. Was the DVD
movie I mentioned above a program performing or a piece of data? But if it's
data, it's being distributed. If it's a program it's being performed
publically. Either way it might fall under copyright terms.
Terry Hancock ( hancock at anansispaceworks.com )
Anansi Spaceworks http://www.anansispaceworks.com