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Legality of paywall bypass websites
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Ottavio Caruso
Oct 7, 2020, 5:05:32 AM10/7/20
to
What possible offences does one commit and what other possible legal
consequences arise, if they:
1) use an online resource to bypass a paywall and read an article for
personal use;
2) share a link to an un-paywalled article using an online tool as
mentioned above;
and:
3) does copyright law have anything to do with paywalls?
Thanks
--
Ottavio Caruso
consequences arise, if they:
1) use an online resource to bypass a paywall and read an article for
personal use;
2) share a link to an un-paywalled article using an online tool as
mentioned above;
and:
3) does copyright law have anything to do with paywalls?
Thanks
--
Ottavio Caruso
Mark Goodge
Oct 7, 2020, 6:22:48 AM10/7/20
to
On Wed, 7 Oct 2020 10:04:32 +0100, Ottavio Caruso
A lot of paywalled websites have a legitimate by-pass intended for use
by search engines and their users. For example, it's well known that if
you follow a link from Google to the Financial Times, you can read the
article for free but not if you go directly to the page by typing in the
URL or following a link from another source. Other sites (such as the
Daily Telegraph) use client-side Javascript to apply the firewall which
can therefore easily be by-passed by disabling Javascript (or viewing
the source of the page). And some sites allow a limited number of free
views before applying a paywall, in which case the count can usually be
reset by deleting cookies.
If the tool is merely utilising a legitimate by-pass, such as any of the
above, then no offence or intellectual property infringement is
committed by an end user who uses such a tool (or manually applies the
technique used by the tool) to view the content. The decision to use a
porous paywall is a commercial decision made in the light of the
knowledge that some people will by-pass it, but that the numbers doing
so are small enough to be disregarded and, in any case, any losses
incurred are more than offset by the advantages (to the publisher) of a
porous paywall.
If the tool is somehow cracking a paywall that is intended to be a hard
paywall, though (that is, one with no legitimate by-pass), then,
theoretically, using such a tool may amount to an offence under the
Computer Misuse Act or some form of fraud. It would, though, be
difficult to prove, and for personal use the probability of being
prosecuted would be practically zero.
>2) share a link to an un-paywalled article using an online tool as
>mentioned above;
As above, that depends on the nature of the paywall and the tool. The
difference is that if the tool is cracking a hard paywall, publicly
posting the link is more likely to attract attention from the
rightsholders and, potentially, the authorities, than simply using it
for personal consumption.
>and:
>
>3) does copyright law have anything to do with paywalls?
Not copyright itself, no. Making a copy of anything without permission
(or without a statutory exemption) is infringement, but that isn't
directly affected by the existence or otherwise of a paywall. Merely
viewing a website, even one protected by a hard paywall that you're
by-passing illegitimately, can never be a copyright infringement because
the only copies being made (on the user's local machine and in the
network) are explicitly permitted by statute as "transient" copies (and
there is case law to the effect that the transient copy exemption
applies even if access to the material is unauthorised).
There is, though, a related "Making available right" which could
infringed by posting a link to an illegitimate means of viewing the
content. Whether a court would deem it an infringement would depend on
the circumstances. It would almost certainly be an infringement if it
permitted the by-passing of a hard paywall, but may not be if it's
simply utilising a legitimate means of by-passing a porous paywall. I'm
not aware of any case law on the matter.
Mark
<ottavio2006...@yahoo.com> wrote:
>What possible offences does one commit and what other possible legal
>consequences arise, if they:
>
>1) use an online resource to bypass a paywall and read an article for
>personal use;
None, in most cases.
>What possible offences does one commit and what other possible legal
>consequences arise, if they:
>
>1) use an online resource to bypass a paywall and read an article for
>personal use;
A lot of paywalled websites have a legitimate by-pass intended for use
by search engines and their users. For example, it's well known that if
you follow a link from Google to the Financial Times, you can read the
article for free but not if you go directly to the page by typing in the
URL or following a link from another source. Other sites (such as the
Daily Telegraph) use client-side Javascript to apply the firewall which
can therefore easily be by-passed by disabling Javascript (or viewing
the source of the page). And some sites allow a limited number of free
views before applying a paywall, in which case the count can usually be
reset by deleting cookies.
If the tool is merely utilising a legitimate by-pass, such as any of the
above, then no offence or intellectual property infringement is
committed by an end user who uses such a tool (or manually applies the
technique used by the tool) to view the content. The decision to use a
porous paywall is a commercial decision made in the light of the
knowledge that some people will by-pass it, but that the numbers doing
so are small enough to be disregarded and, in any case, any losses
incurred are more than offset by the advantages (to the publisher) of a
porous paywall.
If the tool is somehow cracking a paywall that is intended to be a hard
paywall, though (that is, one with no legitimate by-pass), then,
theoretically, using such a tool may amount to an offence under the
Computer Misuse Act or some form of fraud. It would, though, be
difficult to prove, and for personal use the probability of being
prosecuted would be practically zero.
>2) share a link to an un-paywalled article using an online tool as
>mentioned above;
difference is that if the tool is cracking a hard paywall, publicly
posting the link is more likely to attract attention from the
rightsholders and, potentially, the authorities, than simply using it
for personal consumption.
>and:
>
>3) does copyright law have anything to do with paywalls?
(or without a statutory exemption) is infringement, but that isn't
directly affected by the existence or otherwise of a paywall. Merely
viewing a website, even one protected by a hard paywall that you're
by-passing illegitimately, can never be a copyright infringement because
the only copies being made (on the user's local machine and in the
network) are explicitly permitted by statute as "transient" copies (and
there is case law to the effect that the transient copy exemption
applies even if access to the material is unauthorised).
There is, though, a related "Making available right" which could
infringed by posting a link to an illegitimate means of viewing the
content. Whether a court would deem it an infringement would depend on
the circumstances. It would almost certainly be an infringement if it
permitted the by-passing of a hard paywall, but may not be if it's
simply utilising a legitimate means of by-passing a porous paywall. I'm
not aware of any case law on the matter.
Mark
Norman Wells
Oct 7, 2020, 10:47:44 AM10/7/20
to
Copyright Designs and Patents Act 1988:
"296ZA Circumvention of technological measures
(1) This section applies where—
(a) effective technological measures have been applied to a copyright
work other than a computer program; and
(b) a person (B) does anything which circumvents those measures
knowing, or with reasonable grounds to know, that he is pursuing that
objective.
There is nothing in there about how leaky the protection might be, or
how easy it is to get round, or whether there is a 'legitimate' by-pass.
If you do 'anything' to get round it, it says you infringe copyright.
>> 2) share a link to an un-paywalled article using an online tool as
>> mentioned above;
>
> As above, that depends on the nature of the paywall and the tool. The
> difference is that if the tool is cracking a hard paywall, publicly
> posting the link is more likely to attract attention from the
> rightsholders and, potentially, the authorities, than simply using it
> for personal consumption.
>
>> and:
>>
>> 3) does copyright law have anything to do with paywalls?
>
> Not copyright itself, no. Making a copy of anything without permission
> (or without a statutory exemption) is infringement, but that isn't
> directly affected by the existence or otherwise of a paywall. Merely
> viewing a website, even one protected by a hard paywall that you're
> by-passing illegitimately, can never be a copyright infringement because
> the only copies being made (on the user's local machine and in the
> network) are explicitly permitted by statute as "transient" copies (and
> there is case law to the effect that the transient copy exemption
> applies even if access to the material is unauthorised).
what transient means in the context of the CDPA.
> There is, though, a related "Making available right" which could
> infringed by posting a link to an illegitimate means of viewing the
> content. Whether a court would deem it an infringement would depend on
> the circumstances. It would almost certainly be an infringement if it
> permitted the by-passing of a hard paywall, but may not be if it's
> simply utilising a legitimate means of by-passing a porous paywall. I'm
> not aware of any case law on the matter.
There may be no case law on this, I don't know. But the law seems
perfectly clear as it's written, and there's little to argue or take a
case to court about.
Mark Goodge
Oct 7, 2020, 11:16:01 AM10/7/20
to
On Wed, 7 Oct 2020 12:24:46 +0100, Norman Wells <h...@unseen.ac.am>
wrote:
>On 07/10/2020 11:22, Mark Goodge wrote:
>> If the tool is somehow cracking a paywall that is intended to be a hard
>> paywall, though (that is, one with no legitimate by-pass), then,
>> theoretically, using such a tool may amount to an offence under the
>> Computer Misuse Act or some form of fraud. It would, though, be
>> difficult to prove, and for personal use the probability of being
>> prosecuted would be practically zero.
>
>The most relevant provision in the law is actually Section 296ZA of the
>Copyright Designs and Patents Act 1988:
No, it isn't. There's no copyright infringement involved in viewing a
web page.
>> Not copyright itself, no. Making a copy of anything without permission
>> (or without a statutory exemption) is infringement, but that isn't
>> directly affected by the existence or otherwise of a paywall. Merely
>> viewing a website, even one protected by a hard paywall that you're
>> by-passing illegitimately, can never be a copyright infringement because
>> the only copies being made (on the user's local machine and in the
>> network) are explicitly permitted by statute as "transient" copies (and
>> there is case law to the effect that the transient copy exemption
>> applies even if access to the material is unauthorised).
>
>It's not 'transient though. It's not made and instantly gone, which is
>what transient means in the context of the CDPA.
No, it isn't. There's nothing in the legislation which requires it to be
"instantly gone". So long as it disappears automatically and isn't
extracted and stored separately, the time it takes to transit doesn't
affect whether or not it's transient. To quote the relevant case law[1],
the "process must be automated so that it deletes that act
automatically, without human intervention, once its function of enabling
the completion of such a process has come to an end". If that
requirement is fulfilled, then there is no limit as such on the length
of time the process takes. All that it is required is that the copy is
automatically deleted "promptly" when it no longer serves its technical
purpose.
[1] Infopaq International A/S v Danske Dagblades Forening
https://www.bailii.org/eu/cases/EUECJ/2009/C508.html
Mark
wrote:
>On 07/10/2020 11:22, Mark Goodge wrote:
>> If the tool is somehow cracking a paywall that is intended to be a hard
>> paywall, though (that is, one with no legitimate by-pass), then,
>> theoretically, using such a tool may amount to an offence under the
>> Computer Misuse Act or some form of fraud. It would, though, be
>> difficult to prove, and for personal use the probability of being
>> prosecuted would be practically zero.
>
>The most relevant provision in the law is actually Section 296ZA of the
>Copyright Designs and Patents Act 1988:
web page.
>> Not copyright itself, no. Making a copy of anything without permission
>> (or without a statutory exemption) is infringement, but that isn't
>> directly affected by the existence or otherwise of a paywall. Merely
>> viewing a website, even one protected by a hard paywall that you're
>> by-passing illegitimately, can never be a copyright infringement because
>> the only copies being made (on the user's local machine and in the
>> network) are explicitly permitted by statute as "transient" copies (and
>> there is case law to the effect that the transient copy exemption
>> applies even if access to the material is unauthorised).
>
>It's not 'transient though. It's not made and instantly gone, which is
>what transient means in the context of the CDPA.
"instantly gone". So long as it disappears automatically and isn't
extracted and stored separately, the time it takes to transit doesn't
affect whether or not it's transient. To quote the relevant case law[1],
the "process must be automated so that it deletes that act
automatically, without human intervention, once its function of enabling
the completion of such a process has come to an end". If that
requirement is fulfilled, then there is no limit as such on the length
of time the process takes. All that it is required is that the copy is
automatically deleted "promptly" when it no longer serves its technical
purpose.
[1] Infopaq International A/S v Danske Dagblades Forening
https://www.bailii.org/eu/cases/EUECJ/2009/C508.html
Mark
Pamela
Oct 7, 2020, 2:12:12 PM10/7/20
to
It presents a legitimate face but sometimes I see a heck of a lot of
scrolling lines of code to get the web page.
Norman Wells
Oct 7, 2020, 5:34:36 PM10/7/20
to
This what the law says:
"28A Copyright in a literary work ... is not infringed by the making of
a temporary copy which is transient or incidental, which is an integral
and essential part of a technological process and the sole purpose of
which is to enable—
(a) a transmission of the work in a network between third parties by an
intermediary; or
(b) a lawful use of the work;
and which has no independent economic significance.”.
The Copyright and Related Rights Regulations 2003
https://www.legislation.gov.uk/uksi/2003/2498/regulation/8/made
You make a copy of the page whenever you view it. It's how you can view it.
You are not transmitting the work in a network between third parties, so
let-out (a) does not apply.
It is not a lawful use of the work to view it without paying if the
owner requires you to pay, so let-out (b) does not apply.
Even if the copy you make is transient, which it isn't on any definition
of the word, you fall foul of that Section. There is no automatic
deletion of the copy. You have to instruct the browser either to close
down or to move to another webpage.
Viewing it by getting round the technological measures that try to stop
you is also an infringement under Section 296ZA of the CDPA 1988.
> To quote the relevant case law[1],
> the "process must be automated so that it deletes that act
> automatically, without human intervention,
> once its function of enabling
> the completion of such a process has come to an end". If that
> requirement is fulfilled, then there is no limit as such on the length
> of time the process takes. All that it is required is that the copy is
> automatically deleted "promptly" when it no longer serves its technical
> purpose.
>
> [1] Infopaq International A/S v Danske Dagblades Forening
> https://www.bailii.org/eu/cases/EUECJ/2009/C508.html
what is allowed and what isn't.
Mark Goodge
Oct 8, 2020, 5:17:02 AM10/8/20
to
On Wed, 7 Oct 2020 21:19:29 +0100, Norman Wells <h...@unseen.ac.am>
I'm sorry, Norman, but your idiosyncratic belief that your
interpretation of copyright law trumps that of the UKSC and the ECJ is
neither plausible nor worth debating. Feel free to continue pissing into
the wind if you want, but I'm not going to bother giving your posts the
time of day.
Mark
wrote:
>On 07/10/2020 16:15, Mark Goodge wrote:
>> On Wed, 7 Oct 2020 12:24:46 +0100, Norman Wells <h...@unseen.ac.am>
>> wrote:
>>
>>> It's not 'transient though. It's not made and instantly gone, which is
>>> what transient means in the context of the CDPA.
>>
>> No, it isn't. There's nothing in the legislation which requires it to be
>> "instantly gone". So long as it disappears automatically and isn't
>> extracted and stored separately, the time it takes to transit doesn't
>> affect whether or not it's transient.
>
>Yes it does. It's what transient means.
Case law disagrees with you, Norman, and case law is law too.
>On 07/10/2020 16:15, Mark Goodge wrote:
>> On Wed, 7 Oct 2020 12:24:46 +0100, Norman Wells <h...@unseen.ac.am>
>> wrote:
>>
>>> It's not 'transient though. It's not made and instantly gone, which is
>>> what transient means in the context of the CDPA.
>>
>> No, it isn't. There's nothing in the legislation which requires it to be
>> "instantly gone". So long as it disappears automatically and isn't
>> extracted and stored separately, the time it takes to transit doesn't
>> affect whether or not it's transient.
>
>Yes it does. It's what transient means.
I'm sorry, Norman, but your idiosyncratic belief that your
interpretation of copyright law trumps that of the UKSC and the ECJ is
neither plausible nor worth debating. Feel free to continue pissing into
the wind if you want, but I'm not going to bother giving your posts the
time of day.
Mark
Roland Perry
Oct 8, 2020, 5:54:30 AM10/8/20
to
In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
2020, Norman Wells <h...@unseen.ac.am> remarked:
>This what the law says:
>
>"28A Copyright in a literary work ... is not infringed by the making
>of a temporary copy which is transient or incidental, which is an
>integral and essential part of a technological process and the sole
>purpose of which is to enable—
>
>(a) a transmission of the work in a network between third parties by an
>intermediary; or
>
>(b) a lawful use of the work;
>
>and which has no independent economic significance.”.
>
>The Copyright and Related Rights Regulations 2003
>
>https://www.legislation.gov.uk/uksi/2003/2498/regulation/8/made
Cheating slightly, because I helped draft that (in the original
Directive, which the UK copied out)...
>You make a copy of the page whenever you view it. It's how you can view it.
Numerous copies, actually, if you are viewing a web page. I forget the
exact number, but at the time it was said that the way the TCP/IP stack
in a PC had been implemented at the time involved five copies of the
data being made, just during the re-assembly of the packets in the
stack.
Then there's the copies made by the web server software, and its end of
the TCP/IP process, in the routers dotted throughout the Internet core,
in those days almost always in a large cache[1] operated by the
receiving ISP, then in the routers and modems making the link between
the ISP's NOC and the end user.
Better understood by those not in the industry, perhaps, are the copies
which then end up in the user's browser temporary storage, the browser's
cache[2], and in the screen RAM.
[1] That's where the "independent economic significance" mainly kicks
in. Rightsholders did not want ISPs scraping that cache, and making
the content available to all and sundry. You see that kind if thing
on some ecommerce sites today, where when you see a little window
through which the "last ten queries" (fsvo query) scroll past as a
bit of voyeurism for users. In a more serious case, an ISP could
theoretically jigsaw together the content from a website by
assembling the fragments already requests by customer, hanging
around in the cache. And then sell access to all and sundry. It
wouldn't take long, for example, to grab most of the content from a
paywalled site like The Times, as it flew past, requested by one or
other customer who had a subscription.
[2] I see my #2 computer has 120MB of "Temporary Internet Files". Hmm.
Not so temporary then. Oh well, perhaps it's a cache after all ;)
>You are not transmitting the work in a network between third parties,
>so let-out (a) does not apply.
Actually, you are. From the point of view of the rightsholder, the web
farm hosting their content is a third party, the user is another third
party (who initiated the transfer in the network), and the ISPs
operating routers in the core, as well as both the web farm and user's
ISP, are intermediaries.
>It is not a lawful use of the work to view it without paying if the
>owner requires you to pay, so let-out (b) does not apply.
That's not what it means (see earlier).
>Even if the copy you make is transient, which it isn't on any
>definition of the word,
Almost all of them, apart from the caches, are transient. But caches
have exemption in other legislation. Damn, we were good! [I actually
had more involvement in that stuff, negotiating as well as drafting
the wording]
{The alternative wasn't "No Internet" - that was a form of Project Fear
some of the less clued-up lobbyists at the time were punting. But
browser suppliers would probably have had to pay something like a PRS
fee (making it difficult for them to be free to the user) ISPs paying
licence fees for running network caches (increasing fees to users) and
users would have found that much published content was likely to be
accessible only via aggregators (such as has now evolved for
movies/books: PPV/subscription platforms such as Netflix and Amazon
Kindle). Publishers then had to find other revenue streams, initially
advertising, but now increasingly individual paywalls.
And it was only the coherence of the EU which allowed this hammer-blow
to quell the rightsholders}
>you fall foul of that Section. There is no automatic deletion of the
>copy.
Almost all the copies I listed above are automatically deleted (or
discarded would be a better word).
>You have to instruct the browser either to close down or to move to
>another webpage.
That's just clearing the copy in your Video RAM (and perhaps the very
last copy held by the browser, from which the copy in video RAM is
created).
--
Roland Perry
2020, Norman Wells <h...@unseen.ac.am> remarked:
>This what the law says:
>
>"28A Copyright in a literary work ... is not infringed by the making
>of a temporary copy which is transient or incidental, which is an
>integral and essential part of a technological process and the sole
>purpose of which is to enable—
>
>(a) a transmission of the work in a network between third parties by an
>intermediary; or
>
>(b) a lawful use of the work;
>
>and which has no independent economic significance.”.
>
>The Copyright and Related Rights Regulations 2003
>
>https://www.legislation.gov.uk/uksi/2003/2498/regulation/8/made
Directive, which the UK copied out)...
>You make a copy of the page whenever you view it. It's how you can view it.
exact number, but at the time it was said that the way the TCP/IP stack
in a PC had been implemented at the time involved five copies of the
data being made, just during the re-assembly of the packets in the
stack.
Then there's the copies made by the web server software, and its end of
the TCP/IP process, in the routers dotted throughout the Internet core,
in those days almost always in a large cache[1] operated by the
receiving ISP, then in the routers and modems making the link between
the ISP's NOC and the end user.
Better understood by those not in the industry, perhaps, are the copies
which then end up in the user's browser temporary storage, the browser's
cache[2], and in the screen RAM.
[1] That's where the "independent economic significance" mainly kicks
in. Rightsholders did not want ISPs scraping that cache, and making
the content available to all and sundry. You see that kind if thing
on some ecommerce sites today, where when you see a little window
through which the "last ten queries" (fsvo query) scroll past as a
bit of voyeurism for users. In a more serious case, an ISP could
theoretically jigsaw together the content from a website by
assembling the fragments already requests by customer, hanging
around in the cache. And then sell access to all and sundry. It
wouldn't take long, for example, to grab most of the content from a
paywalled site like The Times, as it flew past, requested by one or
other customer who had a subscription.
[2] I see my #2 computer has 120MB of "Temporary Internet Files". Hmm.
Not so temporary then. Oh well, perhaps it's a cache after all ;)
>You are not transmitting the work in a network between third parties,
>so let-out (a) does not apply.
farm hosting their content is a third party, the user is another third
party (who initiated the transfer in the network), and the ISPs
operating routers in the core, as well as both the web farm and user's
ISP, are intermediaries.
>It is not a lawful use of the work to view it without paying if the
>owner requires you to pay, so let-out (b) does not apply.
>Even if the copy you make is transient, which it isn't on any
>definition of the word,
have exemption in other legislation. Damn, we were good! [I actually
had more involvement in that stuff, negotiating as well as drafting
the wording]
{The alternative wasn't "No Internet" - that was a form of Project Fear
some of the less clued-up lobbyists at the time were punting. But
browser suppliers would probably have had to pay something like a PRS
fee (making it difficult for them to be free to the user) ISPs paying
licence fees for running network caches (increasing fees to users) and
users would have found that much published content was likely to be
accessible only via aggregators (such as has now evolved for
movies/books: PPV/subscription platforms such as Netflix and Amazon
Kindle). Publishers then had to find other revenue streams, initially
advertising, but now increasingly individual paywalls.
And it was only the coherence of the EU which allowed this hammer-blow
to quell the rightsholders}
>you fall foul of that Section. There is no automatic deletion of the
>copy.
discarded would be a better word).
>You have to instruct the browser either to close down or to move to
>another webpage.
last copy held by the browser, from which the copy in video RAM is
created).
--
Roland Perry
Mark Goodge
Oct 8, 2020, 7:42:02 AM10/8/20
to
On Thu, 8 Oct 2020 07:37:39 +0100, Roland Perry <rol...@perry.co.uk>
wrote:
>In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
>2020, Norman Wells <h...@unseen.ac.am> remarked:
>
The assertion made by the rightsholders was that if a publisher
permitted Alice to view the material, but not Bob, then the transient
and cached copies made by Bob's PC were not a lawful use, and therefore
did not benefit from the exemptions for transient and cached copies.
On the face of it, that's an attractive argument, and particularly so
for publishers as it would have enabled them to use copyright law as a
means of enforcing a paywall or other licence restrictions. As copyright
infringement is, for the most part, a civil matter, it has a much lower
burden of proof than for a criminal offence (such as a CMA offence), and
it would be relatively easy to demonstrate, on the balance of
probabilities, that a person had viewed a web page without permission
and therefore had infringed copyright in the transient and cached data
necessary to facilitate that viewing.
The problem with that argument, though, is that if the local copies on
Bob's PC are infringing, then so are the transient and cached copies on
the infrastructure of Bob's ISP. But the ISP has no way of knowing
whether a particular customer's viewing of a web page is authorised or
not; their network will transmit the data irrespective of any agreement
(or lack of it) between the publisher and the viewer. So the ISP would
be guilty of copyright infringement even if just one of its customers,
entirely unknown to the ISP, viewed a web page that they were not
authorised to view. This would have all sorts of potentially undesirable
consequences should the courts adopt this interpretation.
The courts concluded, therefore, that when considering whether a copy
was infringing, the question of whether an exemption applies is
standalone and not dependent on the answer to any other question.
Essentially, there are two questions...
1. Is the use authorised?
2. Does an exemption apply?
....and the answer to *both* questions has to be "no" in order for an
infringement to take place. If the answer to either question is "yes",
then the answer to the other question is irrelevant. So the exemptions
for caches and transient copies apply irrespective of whether someone is
authorised to view a web page.
This isn't really surprising, when viewed in the context of copyright
law as a whole. Other exemptions are also standalone - for example, the
"fair dealing" and "incidental inclusion" exemptions apply even if the
use is not otherwise authorised - in fact, the purpose of the exemptions
is to remove the requirement for authorisation in certain defined
circumstances. The courts concluded that the technical exemptions for
transient and cached digital copies have the same purpose: to remove the
need for authorisation in the contexts in which they apply. This makes
the technical exemptions consistent with other exemptions, and maintains
consistency across the legislation as a whole. Which is a good thing.
Mark
wrote:
>In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
>2020, Norman Wells <h...@unseen.ac.am> remarked:
>
>>It is not a lawful use of the work to view it without paying if the
>>owner requires you to pay, so let-out (b) does not apply.
>
>That's not what it means (see earlier).
That was interestingly, the nub of the argument in the Meltwater case.
>>owner requires you to pay, so let-out (b) does not apply.
>
>That's not what it means (see earlier).
The assertion made by the rightsholders was that if a publisher
permitted Alice to view the material, but not Bob, then the transient
and cached copies made by Bob's PC were not a lawful use, and therefore
did not benefit from the exemptions for transient and cached copies.
On the face of it, that's an attractive argument, and particularly so
for publishers as it would have enabled them to use copyright law as a
means of enforcing a paywall or other licence restrictions. As copyright
infringement is, for the most part, a civil matter, it has a much lower
burden of proof than for a criminal offence (such as a CMA offence), and
it would be relatively easy to demonstrate, on the balance of
probabilities, that a person had viewed a web page without permission
and therefore had infringed copyright in the transient and cached data
necessary to facilitate that viewing.
The problem with that argument, though, is that if the local copies on
Bob's PC are infringing, then so are the transient and cached copies on
the infrastructure of Bob's ISP. But the ISP has no way of knowing
whether a particular customer's viewing of a web page is authorised or
not; their network will transmit the data irrespective of any agreement
(or lack of it) between the publisher and the viewer. So the ISP would
be guilty of copyright infringement even if just one of its customers,
entirely unknown to the ISP, viewed a web page that they were not
authorised to view. This would have all sorts of potentially undesirable
consequences should the courts adopt this interpretation.
The courts concluded, therefore, that when considering whether a copy
was infringing, the question of whether an exemption applies is
standalone and not dependent on the answer to any other question.
Essentially, there are two questions...
1. Is the use authorised?
2. Does an exemption apply?
....and the answer to *both* questions has to be "no" in order for an
infringement to take place. If the answer to either question is "yes",
then the answer to the other question is irrelevant. So the exemptions
for caches and transient copies apply irrespective of whether someone is
authorised to view a web page.
This isn't really surprising, when viewed in the context of copyright
law as a whole. Other exemptions are also standalone - for example, the
"fair dealing" and "incidental inclusion" exemptions apply even if the
use is not otherwise authorised - in fact, the purpose of the exemptions
is to remove the requirement for authorisation in certain defined
circumstances. The courts concluded that the technical exemptions for
transient and cached digital copies have the same purpose: to remove the
need for authorisation in the contexts in which they apply. This makes
the technical exemptions consistent with other exemptions, and maintains
consistency across the legislation as a whole. Which is a good thing.
Mark
Roland Perry
Oct 8, 2020, 8:47:26 AM10/8/20
to
In message <69ttnf55p5orkepe0...@4ax.com>, at 12:41:59 on
Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk>
remarked:
Had Alice charged Bob for viewing the copy ? If so Alice is guilty, not
Bob. And neither of their ISPs is guilty either.
--
Roland Perry
Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk>
remarked:
>On Thu, 8 Oct 2020 07:37:39 +0100, Roland Perry <rol...@perry.co.uk>
>wrote:
>
>>In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
[Far too much snipped]
>wrote:
>
>>In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
Bob. And neither of their ISPs is guilty either.
--
Roland Perry
Mark Goodge
Oct 8, 2020, 8:59:52 AM10/8/20
to
On Thu, 8 Oct 2020 13:42:53 +0100, Roland Perry <rol...@perry.co.uk>
wrote:
>In message <69ttnf55p5orkepe0...@4ax.com>, at 12:41:59 on
>Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk>
>remarked:
>>
actually about viewing emails), but the arguments around transient and
cached copies are applicable to them as well. The nearest analogy to the
case would be if Alice has a subscription to the Daily Telegraph
website, while Bob is using one of the paywall workarounds referred to
at the top of the thread.
Obviously, Alice's personal subscription to the DT does not entitle her
to make copies of content on the site and distribute them to other
people. That would, indeed, make her an infringer. But the person she
distributes them to is not an infringer, unless he also makes copies
which are not covered by any exemption.
Mark
wrote:
>In message <69ttnf55p5orkepe0...@4ax.com>, at 12:41:59 on
>Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk>
>remarked:
>>
>>This isn't really surprising, when viewed in the context of copyright
>>law as a whole. Other exemptions are also standalone - for example, the
>>"fair dealing" and "incidental inclusion" exemptions apply even if the
>>use is not otherwise authorised - in fact, the purpose of the exemptions
>>is to remove the requirement for authorisation in certain defined
>>circumstances. The courts concluded that the technical exemptions for
>>transient and cached digital copies have the same purpose: to remove the
>>need for authorisation in the contexts in which they apply. This makes
>>the technical exemptions consistent with other exemptions, and maintains
>
>Had Alice charged Bob for viewing the copy ? If so Alice is guilty, not
>Bob. And neither of their ISPs is guilty either.
No. The Meltwater case didn't directly address viewing web pages (it was
>>law as a whole. Other exemptions are also standalone - for example, the
>>"fair dealing" and "incidental inclusion" exemptions apply even if the
>>use is not otherwise authorised - in fact, the purpose of the exemptions
>>is to remove the requirement for authorisation in certain defined
>>circumstances. The courts concluded that the technical exemptions for
>>transient and cached digital copies have the same purpose: to remove the
>>need for authorisation in the contexts in which they apply. This makes
>>the technical exemptions consistent with other exemptions, and maintains
>
>Had Alice charged Bob for viewing the copy ? If so Alice is guilty, not
>Bob. And neither of their ISPs is guilty either.
actually about viewing emails), but the arguments around transient and
cached copies are applicable to them as well. The nearest analogy to the
case would be if Alice has a subscription to the Daily Telegraph
website, while Bob is using one of the paywall workarounds referred to
at the top of the thread.
Obviously, Alice's personal subscription to the DT does not entitle her
to make copies of content on the site and distribute them to other
people. That would, indeed, make her an infringer. But the person she
distributes them to is not an infringer, unless he also makes copies
which are not covered by any exemption.
Mark
Mark Goodge
Oct 8, 2020, 9:27:11 AM10/8/20
to
On Thu, 8 Oct 2020 13:09:16 -0000 (UTC), Jethro_uk
<jeth...@hotmailbin.com> wrote:
>On Thu, 08 Oct 2020 13:59:48 +0100, Mark Goodge wrote:
>
>> Obviously, Alice's personal subscription to the DT does not entitle her
>> to make copies of content on the site and distribute them to other
>> people. That would, indeed, make her an infringer. But the person she
>> distributes them to is not an infringer, unless he also makes copies
>> which are not covered by any exemption.
>
>All of which being said, I have noted some forums have taken down posts
>from people that specifically contained Daily Telegraph material.
Well, yes, because the forum operator is an infringer in that case as
the forum is distributing the material. A forum post is neither a cache
nor transient.
To clarify: If Alice takes a copy of a DT page and emails it to Bob,
Alice is infringing but Bob is not. If Alice takes a copy of a DT page
and posts it on a forum, both Alice and the forum are infringing, but
anyone (including Bob) who reads it on the forum is not.
The forum operator does have a defence of being unaware that a user has
posted infringing material - there is (currently) no requirement for
forum operators to pre-screen all material posted to them for copyright
infringement. But they will be infringing if they do not act promptly on
a valid report of infringing material on their site.
Mark
<jeth...@hotmailbin.com> wrote:
>On Thu, 08 Oct 2020 13:59:48 +0100, Mark Goodge wrote:
>
>> Obviously, Alice's personal subscription to the DT does not entitle her
>> to make copies of content on the site and distribute them to other
>> people. That would, indeed, make her an infringer. But the person she
>> distributes them to is not an infringer, unless he also makes copies
>> which are not covered by any exemption.
>
>from people that specifically contained Daily Telegraph material.
Well, yes, because the forum operator is an infringer in that case as
the forum is distributing the material. A forum post is neither a cache
nor transient.
To clarify: If Alice takes a copy of a DT page and emails it to Bob,
Alice is infringing but Bob is not. If Alice takes a copy of a DT page
and posts it on a forum, both Alice and the forum are infringing, but
anyone (including Bob) who reads it on the forum is not.
The forum operator does have a defence of being unaware that a user has
posted infringing material - there is (currently) no requirement for
forum operators to pre-screen all material posted to them for copyright
infringement. But they will be infringing if they do not act promptly on
a valid report of infringing material on their site.
Mark
Roland Perry
Oct 8, 2020, 9:37:24 AM10/8/20
to
In message <ft3unf98kcovfauqm...@4ax.com>, at 14:27:07 on
None of which are "transient and incidental" so why are you introducing
this red herring?
--
Roland Perry
this red herring?
--
Roland Perry
Roland Perry
Oct 8, 2020, 9:37:27 AM10/8/20
to
In message <nu2unfto71jjjh7ur...@4ax.com>, at 13:59:48 on
independent economic significance.
I did say you snipped too much.
>The nearest analogy to the case would be if Alice has a subscription to
>the Daily Telegraph website, while Bob is using one of the paywall
>workarounds referred to at the top of the thread.
No, the nearest analogy to what the legislation in question is about,
would be Alice selling material out of her PC's web-cache to Bob, so
that Bob doesn't need to access it direct.
>Obviously, Alice's personal subscription to the DT does not entitle her
>to make copies of content on the site and distribute them to other
>people. That would, indeed, make her an infringer.
That's all we need to know.
>But the person she distributes them to is not an infringer,
I said above "not Bob". Glad you agree.
--
Roland Perry
Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk>
remarked:
>On Thu, 8 Oct 2020 13:42:53 +0100, Roland Perry <rol...@perry.co.uk>
>wrote:
>
>>In message <69ttnf55p5orkepe0...@4ax.com>, at 12:41:59 on
>>Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk>
>>remarked:
>>>
>>>This isn't really surprising, when viewed in the context of copyright
>>>law as a whole. Other exemptions are also standalone - for example, the
>>>"fair dealing" and "incidental inclusion" exemptions apply even if the
>>>use is not otherwise authorised - in fact, the purpose of the exemptions
>>>is to remove the requirement for authorisation in certain defined
>>>circumstances. The courts concluded that the technical exemptions for
>>>transient and cached digital copies have the same purpose: to remove the
>>>need for authorisation in the contexts in which they apply. This makes
>>>the technical exemptions consistent with other exemptions, and maintains
>>
>>Had Alice charged Bob for viewing the copy ? If so Alice is guilty, not
>>Bob. And neither of their ISPs is guilty either.
>
>No. The Meltwater case didn't directly address viewing web pages (it was
>actually about viewing emails), but the arguments around transient and
>cached copies are applicable to them as well.
So nothing about copies of rightsholder material, but which have no
remarked:
>On Thu, 8 Oct 2020 13:42:53 +0100, Roland Perry <rol...@perry.co.uk>
>wrote:
>
>>In message <69ttnf55p5orkepe0...@4ax.com>, at 12:41:59 on
>>Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk>
>>remarked:
>>>
>>>This isn't really surprising, when viewed in the context of copyright
>>>law as a whole. Other exemptions are also standalone - for example, the
>>>"fair dealing" and "incidental inclusion" exemptions apply even if the
>>>use is not otherwise authorised - in fact, the purpose of the exemptions
>>>is to remove the requirement for authorisation in certain defined
>>>circumstances. The courts concluded that the technical exemptions for
>>>transient and cached digital copies have the same purpose: to remove the
>>>need for authorisation in the contexts in which they apply. This makes
>>>the technical exemptions consistent with other exemptions, and maintains
>>
>>Had Alice charged Bob for viewing the copy ? If so Alice is guilty, not
>>Bob. And neither of their ISPs is guilty either.
>
>No. The Meltwater case didn't directly address viewing web pages (it was
>actually about viewing emails), but the arguments around transient and
>cached copies are applicable to them as well.
independent economic significance.
I did say you snipped too much.
>The nearest analogy to the case would be if Alice has a subscription to
>the Daily Telegraph website, while Bob is using one of the paywall
>workarounds referred to at the top of the thread.
would be Alice selling material out of her PC's web-cache to Bob, so
that Bob doesn't need to access it direct.
>Obviously, Alice's personal subscription to the DT does not entitle her
>to make copies of content on the site and distribute them to other
>people. That would, indeed, make her an infringer.
>But the person she distributes them to is not an infringer,
--
Roland Perry
Norman Wells
Oct 8, 2020, 9:54:37 AM10/8/20
to
On 08/10/2020 13:42, Roland Perry wrote:
> In message <69ttnf55p5orkepe0...@4ax.com>, at 12:41:59 on
> Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk> remarked:
>> On Thu, 8 Oct 2020 07:37:39 +0100, Roland Perry <rol...@perry.co.uk>
>> wrote:
>>
>>> In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
>
> [Far too much snipped]
>
>>>> It is not a lawful use of the work to view it without paying if the
>>>> owner requires you to pay, so let-out (b) does not apply.
>>>
>>> That's not what it means (see earlier).
>>
>> That was interestingly, the nub of the argument in the Meltwater case.
No it wan't. The Meltwater case was about ordinary everyday browsing.
> In message <69ttnf55p5orkepe0...@4ax.com>, at 12:41:59 on
> Thu, 8 Oct 2020, Mark Goodge <use...@listmail.good-stuff.co.uk> remarked:
>> On Thu, 8 Oct 2020 07:37:39 +0100, Roland Perry <rol...@perry.co.uk>
>> wrote:
>>
>>> In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
>
> [Far too much snipped]
>
>>>> It is not a lawful use of the work to view it without paying if the
>>>> owner requires you to pay, so let-out (b) does not apply.
>>>
>>> That's not what it means (see earlier).
>>
>> That was interestingly, the nub of the argument in the Meltwater case.
It said nothing about the position if there was a paywall in existence.
With a paywall in place you do not have authorisation from the copyright
owner unless you pay up.
Besides, removal of the paywall without paying up makes it an
infringement under Section 296 of the Act regardless.
Norman Wells
Oct 8, 2020, 9:55:34 AM10/8/20
to
On 08/10/2020 12:41, Mark Goodge wrote:
> The courts concluded, therefore, that when considering whether a copy
> was infringing, the question of whether an exemption applies is
> standalone and not dependent on the answer to any other question.
> Essentially, there are two questions...
>
> 1. Is the use authorised?
> 2. Does an exemption apply?
>
> ....and the answer to *both* questions has to be "no" in order for an
> infringement to take place.
Quite so.
> The courts concluded, therefore, that when considering whether a copy
> was infringing, the question of whether an exemption applies is
> standalone and not dependent on the answer to any other question.
> Essentially, there are two questions...
>
> 1. Is the use authorised?
> 2. Does an exemption apply?
>
> ....and the answer to *both* questions has to be "no" in order for an
> infringement to take place.
The use os not authorised if the content is behind a paywall and there
is no payment.
And the exemptions don't apply for the reasons I've gone into.
The copy made for viewing is therefore copyright infringement under
Section 28A of the Copyright Designs Act 1988, as inserrted by Section 9
of The Copyright and Related Rights Regulations 2003.
There is also the little matter of removing the paywall protection
unlawfully, which contravenes Section 296ZA of that same Act.
Norman Wells
Oct 8, 2020, 9:56:56 AM10/8/20
to
On 08/10/2020 07:37, Roland Perry wrote:
> In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
> 2020, Norman Wells <h...@unseen.ac.am> remarked:
>
>> This what the law says:
>>
>> "28A Copyright in a literary work ... is not infringed by the making
>> of a temporary copy which is transient or incidental, which is an
>> integral and essential part of a technological process and the sole
>> purpose of which is to enable—
>>
>> (a) a transmission of the work in a network between third parties by an
>> intermediary; or
>>
>> (b) a lawful use of the work;
>>
>> and which has no independent economic significance.”.
>>
>> The Copyright and Related Rights Regulations 2003
>>
>> https://www.legislation.gov.uk/uksi/2003/2498/regulation/8/made
>
> Cheating slightly, because I helped draft that (in the original
> Directive, which the UK copied out)...
>
>> You make a copy of the page whenever you view it. It's how you can view it.
>
> Numerous copies, actually, if you are viewing a web page.
Thank you.
> In message <hu6m6h...@mid.individual.net>, at 21:19:29 on Wed, 7 Oct
> 2020, Norman Wells <h...@unseen.ac.am> remarked:
>
>> This what the law says:
>>
>> "28A Copyright in a literary work ... is not infringed by the making
>> of a temporary copy which is transient or incidental, which is an
>> integral and essential part of a technological process and the sole
>> purpose of which is to enable—
>>
>> (a) a transmission of the work in a network between third parties by an
>> intermediary; or
>>
>> (b) a lawful use of the work;
>>
>> and which has no independent economic significance.”.
>>
>> The Copyright and Related Rights Regulations 2003
>>
>> https://www.legislation.gov.uk/uksi/2003/2498/regulation/8/made
>
> Cheating slightly, because I helped draft that (in the original
> Directive, which the UK copied out)...
>
>> You make a copy of the page whenever you view it. It's how you can view it.
>
> Numerous copies, actually, if you are viewing a web page.
whether *he* is doing anything unlawful by circumventing an imposed paywall.
*He* is not 'transmitting the work in a network between third parties',
so let-out (a) does not apply.
>> It is not a lawful use of the work to view it without paying if the
>> owner requires you to pay, so let-out (b) does not apply.
>
> That's not what it means (see earlier).
Whatever it says is what it means. That's how the law works.
>> owner requires you to pay, so let-out (b) does not apply.
>
> That's not what it means (see earlier).
And it says what I said it says.
Let-out (b) does not apply.
>> Even if the copy you make is transient, which it isn't on any
>> definition of the word,
>
> Almost all of them, apart from the caches, are transient. But caches
> have exemption in other legislation. Damn, we were good! [I actually
> had more involvement in that stuff, negotiating as well as drafting
> the wording]
>
> {The alternative wasn't "No Internet" - that was a form of Project Fear
> some of the less clued-up lobbyists at the time were punting. But
> browser suppliers would probably have had to pay something like a PRS
> fee (making it difficult for them to be free to the user) ISPs paying
> licence fees for running network caches (increasing fees to users) and
> users would have found that much published content was likely to be
> accessible only via aggregators (such as has now evolved for
> movies/books: PPV/subscription platforms such as Netflix and Amazon
> Kindle). Publishers then had to find other revenue streams, initially
> advertising, but now increasingly individual paywalls.
>
> And it was only the coherence of the EU which allowed this hammer-blow
> to quell the rightsholders}
>
>> you fall foul of that Section. There is no automatic deletion of the
>> copy.
>
> Almost all the copies I listed above are automatically deleted (or
> discarded would be a better word).
And it doesn't matter whether it's a 'transient' copy or not. It still
has to meet other requirements specified in the Act, which it doesn't.
Hence the introductory words to my argument 'Even if the copy you make
is transient ...'.
>> You have to instruct the browser either to close down or to move to
>> another webpage.
>
> That's just clearing the copy in your Video RAM (and perhaps the very
> last copy held by the browser, from which the copy in video RAM is
> created).
provided in the Act.
Roland Perry
Oct 8, 2020, 10:19:54 AM10/8/20
to
In message <hu8cro...@mid.individual.net>, at 12:52:24 on Thu, 8 Oct
--
Roland Perry
>>> It is not a lawful use of the work to view it without paying if the
>>> owner requires you to pay, so let-out (b) does not apply.
>> That's not what it means (see earlier).
>
>Whatever it says is what it means. That's how the law works.
But it doesn't mean what you claim.
>>> owner requires you to pay, so let-out (b) does not apply.
>> That's not what it means (see earlier).
>
>Whatever it says is what it means. That's how the law works.
--
Roland Perry
Mark Goodge
Oct 8, 2020, 10:42:42 AM10/8/20
to
On Thu, 8 Oct 2020 14:30:26 +0100, Roland Perry <rol...@perry.co.uk>
wrote:
I didn't. Jethro mentioned them. We've now drifted away from discussing
transient and cached copies. Which is fine, because a discussion of
transient and cached copies was itself a drift away from the original
topic of the thread.
Mark
wrote:
transient and cached copies. Which is fine, because a discussion of
transient and cached copies was itself a drift away from the original
topic of the thread.
Mark
Mark Goodge
Oct 8, 2020, 10:44:28 AM10/8/20
to
On Thu, 8 Oct 2020 14:28:17 +0100, Roland Perry <rol...@perry.co.uk>
That's part of the definition of material which attracts the exemption,
yes. So the case was very much about them.
>I did say you snipped too much.
I was only responding to a single point in the dscussion, not all of it.
I snipped all the stuff that I wasn't responding to.
Mark
yes. So the case was very much about them.
>I did say you snipped too much.
I snipped all the stuff that I wasn't responding to.
Mark
Ottavio Caruso
Oct 8, 2020, 1:07:13 PM10/8/20
to
On 08/10/2020 14:27, Mark Goodge wrote:
> To clarify: If Alice takes a copy of a DT page and emails it to Bob,
> Alice is infringing but Bob is not. If Alice takes a copy of a DT page
> and posts it on a forum, both Alice and the forum are infringing, but
> anyone (including Bob) who reads it on the forum is not.
How is the infringement implemented: pay a fine, pay for the article,
> To clarify: If Alice takes a copy of a DT page and emails it to Bob,
> Alice is infringing but Bob is not. If Alice takes a copy of a DT page
> and posts it on a forum, both Alice and the forum are infringing, but
> anyone (including Bob) who reads it on the forum is not.
prison. etc?
--
Ottavio Caruso
Mark Goodge
Oct 8, 2020, 1:20:06 PM10/8/20
to
On Thu, 8 Oct 2020 15:59:48 +0100, Ottavio Caruso
The rightsholder would need to sue the infringer(s) for damages. The
damages in question would normally be the fee that would have been
charged for the content had the infringer paid for a reproduction
licence, plus an uplift for retrospective payment.
Mark
damages in question would normally be the fee that would have been
charged for the content had the infringer paid for a reproduction
licence, plus an uplift for retrospective payment.
Mark
Mark Goodge
Oct 8, 2020, 2:40:03 PM10/8/20
to
On Thu, 8 Oct 2020 17:57:36 -0000 (UTC), Jethro_uk
<jeth...@hotmailbin.com> wrote:
>Plus costs.
Unless the amount is small enough to go into the small claims track, in
which costs cannot be awarded.
Mark
<jeth...@hotmailbin.com> wrote:
Unless the amount is small enough to go into the small claims track, in
which costs cannot be awarded.
Mark
Ottavio Caruso
Oct 8, 2020, 3:39:45 PM10/8/20
to
infringement was acknowledged, then it would equivalent to theft. At
least that's what the champions of IP want us to believe.
--
Ottavio Caruso
Mark Goodge
Oct 8, 2020, 4:00:02 PM10/8/20
to
On Thu, 8 Oct 2020 20:13:09 +0100, Ottavio Caruso
although it's an offence under the Copyright Designs and Patents Act
rather than the Theft Act. But it needs to be deliberate, large-scale
infringement for financial gain (eg, manufacturing or selling knock-off
DVDs or running a piracy website). Copying a newspaper article onto a
forum wouldn't come anywhere near.
Mark
<ottavio2006...@yahoo.com> wrote:
>On 08/10/2020 18:20, Mark Goodge wrote:
>> On Thu, 8 Oct 2020 15:59:48 +0100, Ottavio Caruso
>> <ottavio2006...@yahoo.com> wrote:
>>
>>> On 08/10/2020 14:27, Mark Goodge wrote:
>>>> To clarify: If Alice takes a copy of a DT page and emails it to Bob,
>>>> Alice is infringing but Bob is not. If Alice takes a copy of a DT page
>>>> and posts it on a forum, both Alice and the forum are infringing, but
>>>> anyone (including Bob) who reads it on the forum is not.
>>>
>>> How is the infringement implemented: pay a fine, pay for the article,
>>> prison. etc?
>>
>> The rightsholder would need to sue the infringer(s) for damages. The
>> damages in question would normally be the fee that would have been
>> charged for the content had the infringer paid for a reproduction
>> licence, plus an uplift for retrospective payment.
>
>On 08/10/2020 18:20, Mark Goodge wrote:
>> On Thu, 8 Oct 2020 15:59:48 +0100, Ottavio Caruso
>> <ottavio2006...@yahoo.com> wrote:
>>
>>> On 08/10/2020 14:27, Mark Goodge wrote:
>>>> To clarify: If Alice takes a copy of a DT page and emails it to Bob,
>>>> Alice is infringing but Bob is not. If Alice takes a copy of a DT page
>>>> and posts it on a forum, both Alice and the forum are infringing, but
>>>> anyone (including Bob) who reads it on the forum is not.
>>>
>>> How is the infringement implemented: pay a fine, pay for the article,
>>> prison. etc?
>>
>> The rightsholder would need to sue the infringer(s) for damages. The
>> damages in question would normally be the fee that would have been
>> charged for the content had the infringer paid for a reproduction
>> licence, plus an uplift for retrospective payment.
>
>100% no criminal charges? I'd have though that, if and when an
>infringement was acknowledged, then it would equivalent to theft. At
>least that's what the champions of IP want us to believe.
There are circumstances where copyright infringement can be an offence,
>infringement was acknowledged, then it would equivalent to theft. At
>least that's what the champions of IP want us to believe.
although it's an offence under the Copyright Designs and Patents Act
rather than the Theft Act. But it needs to be deliberate, large-scale
infringement for financial gain (eg, manufacturing or selling knock-off
DVDs or running a piracy website). Copying a newspaper article onto a
forum wouldn't come anywhere near.
Mark
Norman Wells
Oct 8, 2020, 5:10:24 PM10/8/20
to
the work' it includes evading a paywall in contravention of Section
296ZA of the Copyright Designs and Patents Act?
David McNeish
Oct 9, 2020, 4:40:55 AM10/9/20
to
On Wednesday, 7 October 2020 at 10:05:32 UTC+1, Ottavio Caruso wrote:
> What possible offences does one commit and what other possible legal
> consequences arise, if they:
>
> 1) use an online resource to bypass a paywall and read an article for
> personal use;
>
> What possible offences does one commit and what other possible legal
> consequences arise, if they:
>
> 1) use an online resource to bypass a paywall and read an article for
> personal use;
>
> 2) share a link to an un-paywalled article using an online tool as
> mentioned above;
>
> mentioned above;
>
> and:
>
> 3) does copyright law have anything to do with paywalls?
Out of interest, how is this paywall bypassing being achieved?
>
> 3) does copyright law have anything to do with paywalls?
I've seen some newspaper sites where their paywall just reveals text which you've already downloaded (you can read it yourself if you view the web page source), which I suspect is different from e.g. copying material sourced through somebody else's subscription.
Adam Funk
Oct 9, 2020, 8:57:13 AM10/9/20
to
Ottavio Caruso
Oct 9, 2020, 12:55:54 PM10/9/20
to
--
Ottavio Caruso
Mark Goodge
Oct 9, 2020, 3:05:53 PM10/9/20
to
download a full copy of the text but then uses Javascript to prevent the
browser rendering it. I've seen sites which do something similar but
with CSS rather than scripting.
Another common one is to present different content depending on the
Referer and/or User-Agent headers sent by the browser. In this case, the
intention is to allow search engines to index the site, and for someone
following a link from a search engine to be able to read it, but not
someone following a link from anywhere else or typing the URL directly
into their browser. That's how the Financial Times does it, for example.
Both of the above, though, depend on client-side protection. If the
browser does not behave as expected by the publisher, then the material
will be viewable to people who would otherwise not normally be able to
view it. Given that the HTML specification does not provide for means
whereby the site publisher can control what the browser does with the
content after downloading it, or how the browser will present itself to
the server, this kind of paywall is essentially a request rather than a
command, and the publisher has no technical or legal means of making the
request into a command.
The third type of paywall is where the content sent to the browser is
dependent on the logged-in state of the browser. That's how The Times
does it, for example. And there's no end-user means of by-passing this
other than to find some means of sending fake login credentials, or by
fraudulently using someone else's credentials. A middleman could,
though, log in with theoir own valid credentials, and then make the
content they see available to others. That would, as you say, clearly be
a copyright infringement.
Mark
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