[AnthonyMouse]

> So, this is basically a technical argument based on a technical implementation detail. These mostly are considered irrelevant and frequently fail (see, e.g., napster et al)

"Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details.

> I could simply avoid all liability by setting up a server/separate legal entity in a country with no copyright laws, place all images there, and then i've never published anything at all by your argument.

Is this not exactly the sort of thing companies do on a regular basis to avoid, for example, taxes? Or minimum wage laws or a hundred other things like that? If there is a jurisdiction where it's legal then it's legal to do it in that jurisdiction, no?

> Similarly, if i wrote a book, and on page 34 it said "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38", the law would probably be okay with that. If i had an electronic book that auto-loaded and displayed that content for the user, so the user did not have to do it, they'd probably consider it infringement.

This is where we're getting to the part where the technical details have relevance. A website isn't a device, it's a piece of information which is rendered by a third party device. You are just telling them where they can find the information. But the third party browser on the third party device has the capacity to fetch and display it for the user.

Consider a similar scenario: Devices improve to the point that they can parse the words "for the text and images on this page, please see Encyclopedia Brittanica volume B, page 38" and then automatically fetch and display the images. Has your sentence retroactively become infringing because the user's device has improved?

This sort of thing starts to have real salience when you get into things like content addressable storage, where the hash of the data both identifies it and can be used to locate, obtain and authenticate it.

[DannyBee]

""Details are irrelevant" is the argument you get from people who don't want to consider the implications of the details."

That's just a silly dig, considering i've spent years of my life and training considering the implications of the details of these very things.

"Is this not exactly the sort of thing companies do on a regular basis to avoid, for example, taxes? Or minimum wage laws or a hundred other things like that? If there is a jurisdiction where it's legal then it's legal to do it in that jurisdiction, no?

This is basically a "laws should all be completely and totally logically consistent and judged by judgement automatons following finite state machines"

As much as the news and reddit may make that out to be what happens, it is not what happens in practice. In fact, in the very thing you are talking about, courts in various countries looked at it said "nope, not okay".

"But this is where we're getting to the part where the technical details have relevance."

IMHO, no, they don't

" A website isn't a device, it's a piece of information which is rendered by a third party device. You are just telling them where they can find the information. But the third party browser on the third party device has the capacity to fetch and display it for the user."

You can play this game all you want, i understand in detail the distinction you are trying to draw and pretty roundly reject it. It's just an attempt to abdicate intent and responsibility. The intent of the person who made the page is for the third party device to do what it did and display it. It did that.

If there was a <murder> tag that instructed devices to murder the person named by the text a loaded from the ref attribute, and i used the tag, you don't get to say "well, it was just a piece of information, interpreted by a third party device".

You intended it to murder someone when it was interpreted, and it did murder someone when it was interpreted.

The same way i wouldn't feel "All i did was give the third party murdering device a link to some instructions, not the instructions themselves" is not the kind of distinction i think makes a lot of sense to try to hang your hat on.

If the EFF/others want the law to be different, i'm actually all for it. I even think what i'm suggesting is a pretty shitty policy for the internet (and i spent years of my life fighting to push us towards a better copyright-free utopia ;P). But it's also what i think it says right now.

". Has your sentence retroactively become infringing because the user's device has improved?"

No, because that wasn't the intent at the time i did it.

[AnthonyMouse]

> That's just a silly dig, considering i've spent years of my life and training cconsidering the implications of the details of these very things.

The silly dig is the argument that technical details are mostly irrelevant. It's possible for some details to sometimes be irrelevant, but it's hardly a generally applicable rule that gives you any useful information about when they are or aren't.

> This is basically a "laws should all be completely and totally logically consistent and judged by judgement automatons following finite state machines"

How is it that, and why is being logically consistent bad?

> As much as the news and reddit may make that out to be what happens, it is not what happens in practice. In fact, in the very thing you are talking about, courts in various countries looked at it said "nope, not okay".

If a company moves from the US to China and then doesn't pay US taxes on the operations in China and pay the Chinese workers the US minimum wage, they are breaking the law?

> The intent of the person who made the page is for the third party device to do what it did and display it. It did that.

You keep talking about intent when the problem is the precedent it sets. For example:

> No, because that wasn't the intent at the time i did it.

So what happens when you publish the same sentence with the same intent after it becomes public knowledge that devices can use the information to automatically fetch and display it? Is it no longer possible to perform the same action with the original intent?

If you're just requiring people to reconfigure things to give themselves plausible deniability about their intent then the whole thing is a waste of resources, but if you're going to prohibit people from identifying the information regardless of their intent then why are you making such a big deal about intent to begin with?

[belorn]

Fair use is seen as one of the more difficult laws to define in logical consistent terms, so lets start there. Can we create fair use definition in such way that a mathematical function separate all that should be defined as fair use, and all that should not based on unbiased measurable facts.

Common legal theory says that we can not do that. Fair use is inherently subjective and ruled on a balance of interests between copyright holders and the public good. The public good in turn is also extremely hard to define, and is usually seen as one of those things we know when we see it but can't attribute to logically consistent rules.

[AnthonyMouse]

So this is a good example of what I'm talking about. You're talking about the difficulty of making a fair use determination, but the question in most of these cases isn't whether a specific action is fair use, it's whether any of the reasonable actions are. And you don't need to make an inherently subjective determination for that because the subjective cases are irrelevant if you can find any solid instance where the outcome isn't ambiguous.

The citation example makes the point pretty well. Suppose you make a citation -- this image is on page 34 of this book, using a standard machine-readable citation format.

There are multiple things the user and the user's browser could do with that information. It can show you links to stores where you can buy a print edition of that book, or it can look up the page in a location index and find electronic sources for the content of that page. Some of those sources and some of the uses of the content are plausibly unambiguous cases of fair use. Some of the sources and uses are plausibly unambiguous cases of piracy. They may even be the same sources but different uses.

If you want to evaluate one of the individual cases then you may have to make a complicated fair use determination, but we're not talking about an individual user, we're talking about the person providing the citation. Whether their intent is facilitating users buying the book, or using it in a clear case of fair use, or using it in a clear case of piracy, their action is the same. The action itself doesn't reveal their intent. You can't make the determination based on that because you don't know it.

The difference between this and the murder example is that the defendant's action isn't the directly prohibited thing. If you intentionally kill someone, that's what murder is. If you hire someone else to do it, you're still clearly intending that outcome.

The analogous thing would be selling weapons. Your obvious intent is to sell a knife, not to have someone murdered. That may secretly be your true motivation, but without any additional evidence of that there is no way to know, and certainly at least some of the people who sell weapons do so without the intent that they be used to commit murder.

[belorn]

It can be impossible to determining intent in some cases but that has not stopped law writers and politicians from defining intent and guilt in the absent.

The pirate bay case was actually a such example. The law that the judges cited in the case was based on the concept that if the majority usage of a tool is illegal then the owner of said tool can be held as an accomplish. The background text of that law was biker bars. The politicians wanted a way to confiscate the buildings, so they created the law. No intent needed of the owner, only establishing that the primary usage of the "tool" illegal and there you go. If you had a gun shop and the primary customers you got was murderers you could in theory be charged with assistance of murder in each case that the police can guess is likely to have happened. The pirate bay case also established that someone can be charged with with assistance even if the "original case" has not been proven.

Not saying any of that is good. The law is ugly, inconsistent and full of subjective aspects.

[AnthonyMouse]

> The pirate bay case was actually a such example.

The pirate bay isn't in the US.

And in general, the fact that some bad laws exist that violate the general principles the legal system as a whole operates under is no excuse for condoning such laws or not construing them as narrowly as possible to mitigate the damage done to the justice system by naked populism like that.

If there are so many marijuana users that the majority of pipes sold are used for marijuana rather than tobacco, it makes absolutely no sense to punish the people selling pipes rather than either punishing the people actually using marijuana or just legalizing marijuana.