Bill Peifer wrote:
> The particular fellow in question did take someone else's copyrighted,
> legally published creative work, and used it without permission for
> commercial purposes. That violates the fair use provisions of US copyright
> law. Certainly, that constitutes theft, does it not?
Actually, he did not _make_an_unauthorized_copy_, so it's not clear
that he violated copyright. Yes, it was an unauthorized _use_ of
the work, but unlike most unauthorized use, no copies were made.[*]
> (He also appears to
> represent it as his own creative work, which is plagiarism --
No, he left Boz' copyright notice intact. He didn't claim ownership;
he merely used it without permission.
> Certainly, one might also
> argue that this fellow is technically guilty of "theft of services"
Indeed, that's probably the only legal issue outside of eBay's own
rules.[**]
> Boz,
> or Dario, or their respective ISPs, are stuck paying for the bandwidth usage
> for all of this fellow's prospective customers who are linking to the
> improperly referenced images.
*nod* And the only thing that makes that different from the
bandwidth consumed by normal viewers to Boz' site is that the
page or pages on which the image is intended to be displayed
are not being seen. Merely increasing his bandwidth slightly
is probably not actionable[***] -- look at the "slashdot effect"
for example -- but the fact that the expected benefit to Boz of
that bandwidth (clarifying or extending the information communicated
by his site) is being sidestepped might the tack to take here.
> Smells like theft to me.
"Smells like theft" isn't very strong. I can say it "smells _wrong_
somehow", that it seems un-cool on a couple of different levels,
but I'm not yet convinced that a law was broken. Maybe a "there ought
to be a law" was broken (and frankly I'd be frightened of unintended
consequences if anyone tried to write a law that covered this), and
I'm pretty damned certain that the seller Shouldn't Have Done This
Without Asking, but I think that charging him with a violation of
Boz' _copyright_ may be hasty.
He did violate Boz' terms-of-use for his site and the images on
it. I'm not sure what standing those terms have in law -- more
or less than a "shrink-wrap license"? Ettiquette and fair-play
do say that the stated terms should have been honored, but is this
actionable?
Note that the only practical way to use the image without making it
possible for Boz to replace it on the fly with soft-porn or anything
else _would_ be to violate Boz' copyright by making an unauthorized
copy. So this guy can't stop Boz from interfering with his unauthorized
use of the image without going ahead and clearly breaking a law.
A bunch of us are convinced that what the eBay seller did was wrong
for some reason(s). Let us not make the mistake of confusing that
with whether it was also against the law.
-- Glenn
[*] I'm ignoring the fact that the bits are transmitted (copied)
to each viewer's computer for viewing. That ephemeral copy is
being transmitted by Boz' web server at the request of the viewer's
browser, and the eBay seller merely provided the address.
[**] Yes, we agree that eBay does not have the power to enact laws.
Still, the use of the word "illegal" is fuzzy in casual conversation,
which this essentially is. We talk about it being "illegal" for a
player who has stepped out of bounds to return inbounds and catch a
forward pass in American football, even though doing so is not a
criminal matter. Thus my qualifier here regarding the scope of the
word "legal" in the sentence to which this footnote is attached.
[***] N.b.: IANAL!
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