From: Kirk Steele (ksteele42@yahoo.com)
Date: Thu Sep 25 2003 - 07:49:49 MDT
Hermit <virus@hermit.net> wrote:
[Hermit 3] .
[Kirk 5] All good and well, if the convention of the "group" is abided by all.
[Hermit 7] Oh, it is sufficiently enforceable to make it work. Member of the church and member of the study group, accepting the ground rules of the study group as part of their membership - including respecting all copyright issues. These are technicalities which can be resolved - and will be if there is sufficient interest. But I'm not going to put a lot of work into it if the interest is not there.
[hr]
[Hermit 3] I see the Researcher as a bot.
[Kirk8] Once again self declaration does not the exception allow. Assertion by Fiat/Rule by Fiat (RBF) is not how precedents are successfully set. RBF only works in relationships and with children. The legal community will shoot such a proposal down. The precedent of a Virtual Institution is not well entrenched outside of Wallstreet. The virtual colleges have a physical campus foundation upon which to build their argumentative stance. I understand that you are willing to set up the physical resources, but the courts would be hard pressed to see that as a NFP venture without other mechanisms in place, for example:
1) Charter
2) Membership
3) Bylaws
4) Protocols
5) Mission Statement
6) Research goals
All that good stuff that goes into a business plan, plus a little bit more.
[Kirk 5] Current precidents and definitions with in 17 U.S.C. do not agree with this interpretation. I don't think David M would like to foot the bill for legal defense.
[Hermit 7] I don't see this as an issue for a number of reasons:
[Hermit 7.1] Lucifer Media is a service provider within the meaning of the necessary acts, and thus a "common carrier" rather than a "publisher".
[Hermit 7.2] As I said initially,
[Hermit 1] If there is interest in such a facilty, I would be prepared to set something up. I would do this via a non-profit reseach company as a formal research project and would host it on a paid virtual host service - to all intents eliminating any possible legal repercussions. If anyone objected, they would need to issue a cease and desist order, rather than being in a position to assert a tort.
[Kirk8.1] Lucifer Media and CoV are somewhat synonymous. Asserting the seperation is what I said in my previous post as "divorcing" one from the other.
[Kirk8.2] Insofar as the C&D order, you know as well as I that any "author/publisher" is going to wait till signifigant 'damage' has been incurred prior to issuing said C&D, then jump straight into the damages tort. That IS how the American Bar has trained its customer base.
[Hermit 7.3] The bot would be acting as the agent of the researcher. As a researcher is entitled to quote relevent material on request, I don't see that interposing such a bot (unless a contractual issue aside from copyright - in which case, at worst, the sevice provider could terminate the service IFF the contractual issue overrode "fair use", which I'm not sure could be the case but see [Hermit 7.4] infra) could change this.
[Hermit 7.4] The material would be being presented to a closed-group, formed for purposes that specifically trigger "fair use" provisions. These issues together should ensure that there is neither practical likelihood of any action being taken for such usage, nor any legal grounds for doing so.
[hr]
[Hermit 3] If the TOS for the site precludes using an autoresponding bot, then the appropriately licenced human researcher would have to click "yes" to make the post, i.e. would act like a moderator, and as such the post would not have been made "automatically".
[Kirk 5] I don't think that this method of 'intervention', which is forwarded ostensibly to preclude "bot abuse" of a resource, would be acceptable. The intent of the liscense structure is to ensure fair remuneration for fair use. Granted, the term "fair" is subjective, as well as the assignment of precedent for establishing a bench mark of what fair use can be defined as. But the intent is to reward the creators of a resource for their work.
[Hermit 7.4] This is an advance notice of a possible concern, and means of obviating it if the publishers have included such a condition. Not a serious obstacle, as the terms of use must permit quotation of the resources, or the "fair use" provisions of the USC title would come into play rendering the issue moot. That being so, a human researcher could certainly make such use of the material as I am suggesting, and the copyright holder would have been remunerated for this via the licence fee paid by the researcher. As far as I can tell, legally, a bot would have to be regarded either as a tool, or as an agent (servant) of the person deploying it, and as such a bot would legally be equivalent to the research agent, who would licensed user. If such a bypass as hypothesized here were needed (which we will only know after studying the TOS), I'm not sure how this could be prevented, and in fact, suspect that it cannot be.
[hr]
[Kirk 5] Rewarding the creators of a work is one thing, the assignment of fair value is another. The competing paradigms of "market driven research resourcing" and the "collective conscious seeking knowledge without the fetters of pecuniary impeadance" are what we are talking about here. How do we "legitamately" seek to resolve this connundrum?
[Hermit 7.5] This is a much bigger issue which I have been dealing with inter alia, in #rats as part of the "Rational Party" exercise. My take is that the entire concept of ownership of intangible properties is screwed beyond belief coutesy of the coninuous piling of legal fiction one on another to a point where the law now bears no relationship to reality which suggests that not only the implementations, but the concepts need to be reevaluated and the laws (if needed) changed to reflect the reality of the modern situation and likely future. Even if only in order to accomplish the intent of the original legal basis for copyright - which, it seems, the current law has all but forgotten in its determination to make profits for distributors...
[Hermit 7.6] What appears to be the "obvious" channel, is to make available a mechanism whereby a public levy is collected to pay for availability, and original producers remunerated for making their works available by such channels. This would introduce a desperately needed separation between the concept of a "creative work" and the physical manifestation of it.
[Hermit 7.7] Fortunately, if anyone is interested, the suggested mechanism here doesn't need this - or indeed any - general solution. I'm sufficiently confident that it can be accomplished with no more difficulty than any "ordinary" church would have copying parts of a copyright work for the purposes of a "babble study class". Which is, I'd suggest (and argue), the appropriate analogy to be using.
[Kirk8.4] To summarize
NFP status - establish credible history prior to seeking resources
Bot as Agent - Hard Sell, that one hasn't even been talked about yet. We would be one of the first
Rational Party Paradigm - Good thing Joe McCarthy isn't around to hear that one, or we would get strung up by our testicles.
"Socialism buy any other name would smell justice unsweet." (With sincerist apologies to the Bard)
KAFGDS W
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