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Another Clash Between Virtual And Physical Perspectives in Internet Law:
The Ninth Circuit handed down an interesting copyright case today, Perfect 10 v. Amazon.com. It's interesting case for a number of reasons, but I was particularly intrigued by the clash between virtual and physical descriptions of the Internet on the question of when a computer "displays" a copyrighted work (see analysis starting at 5770). The court adopted a physical/external perspective rather than a virtual/internal one, basing its rule on how computers actually work rather than the impressions held by casual users. For more on the clash between physical and virtual perspectives in Internet law, see here. (Hat tip: Howard)

Related Posts (on one page):

  1. Another Clash Between Virtual And Physical Perspectives in Internet Law:
  2. Virtual Analogies, Physical Searches, and the Fourth Amendment:
ShelbytheIntern (mail) (www):
Physical? Any reason why they would side with the least obvious? I've never considered the internet to be something physical- because its really not. Strange!

Curious? Check out Christopher Ruddy
5.16.2007 4:29pm
Big H:
"The court adopted a physical/external perspective rather than a virtual/internal one, basing its rule on how computers actually work rather than the impressions held by casual users"

Hmm...might this framework explain the majority/dissent divide in Microsoft v. AT&T a couple of weeks ago? The majority held, sort of, that an instantiation of Windows on a computer is not a "component"; Alito wrote, more specifically, that components had to be physical; he thus came down squarely on the "physicalist" (or "literalist"--hence Alito's quotations from dictionaries from the '60s and '70s--or "objectivist"). Stevens, in dissent, wrote: "if a disk with software inscribed on it is a 'component,' I find it difficult to understand why the most important ingredient of that component [Windows] is not also a component." He is a virtualist (or "metaphorist," or "userist," or "subjectivist").
5.16.2007 5:04pm
New World Dan (www):
ShelbytheIntern,

I consider the internet to be entirely physical. Computers are not magic black boxes. They are relatively simple devices that follow simple sets of instructions. They're just very fast at what they do. The macroscopic effect is what you see in front of you. The court basicly followed the approach I've long held is the correct one: follow the mechanics and everything will fall in line. Until you know who did what, how can you assign liability?
5.16.2007 5:05pm
bornyesterday (mail) (www):
Of course the internet is a physical thing, our Congressmen claim that it is "a series of tubes!"

The internet is a lot more than just physical computers, servers, and the wires/lightwaves that connect them.
5.16.2007 5:22pm
TomH (mail):
The day a legislator actually understands something that he or she is making law on, is the day we get good government.

That day will coincide with the grand opening of Porcine Airlines.
5.16.2007 5:45pm
Eric Spellman:

The court adopted a physical/external perspective rather than a virtual/internal one, basing its rule on how computers actually work rather than the impressions held by casual users.

Please, more detail! I beseech you to chew up this portion of the opinion into easily digestible bits and regurgitate them into my yawning metaphorical law-hatchling mouth!
5.16.2007 7:02pm
OrinKerr:
Eric, you've lost me.
5.16.2007 7:17pm
Brooks P. (mail):
With respect to the full-size images, the court is not so much taking a physical approach as it is rewriting the statute. The court reads in a requirement that to display a copy, you must own a copy. Under this requirement, the physical approach is the only one that makes any sense.

As to the thumbnail images, I reach the exact opposite conclusion. The court's take on things is virtual, not physical.

The court finds that Google "displays" an image when it sends the stream of bits which are then rendered into an on-screen image by the end user's computer. At a physical level, this is clearly erroneous, even when using the broad definition of "display" contained in the statute.

A physical approach to the facts of this case would ignore 17 U.S.C. 106(5) entirely and focus on 106(1) (reproduction) and 106(3) (distribution of copies). Instead, the court does base its rule on the impressions of casual users. "I did an image search, and Google displayed a bunch of thumbnails for me." Mixing up transmission and display is a completely understandable casual user mistake, because the display happens immediately after the transmission.

What if Google were instead mailing out floppy diskettes with copyrighted image files on them? Users would submit a search query at Google's site, and an automated process would write the resulting image files to a diskette and send it by mail, free of charge. Once a user puts the diskette in his computer and renders an image file, is Google publicly displaying the image? Of course not. To answer otherwise would render the reproduction and distribution portions of the statute pointless.

I'm not saying that the rule in this case is a bad one. It falls right into line with how we treat existing technologies. If a television station airs a movie which it has not obtained a license for, it would be silly to allow a defense of "We didn't display the movie. We simply transmitted AM/FM signals. Our audience's TV sets were doing the actual displaying."
5.17.2007 1:13am
Justin (mail):
If the virtual system is not used, then we will seriously have to rethink the guiding principles in a number of areas, particularly privacy and due process.
5.17.2007 11:39am
New World Dan (www):
Brooks P.,

The thumbnail issue is a question of fair use. It's undisputed that Google reproduces and distributes the thumbnail images - low quality approximations of the original. The court looked at use, character, context and quality (among other factors) in determining if this was a valid fair use. Fair use is, unfortunately, a fuzzy topic. The intended use of the thumbnails is a supplement to search results to help a user find what they were searching for. They also have little value outside of that context.
5.17.2007 12:38pm
David Drake (mail):
The opinion seems to me (not a copyright expert) very divorced from reality.

If the "transformative use" discussion of "fair use" stands, then could the pirate web sites argue that their use was fair because they were making the images of naked ladies available for prurient rather than artistic purposes?

It also seems to me that the "copy" here is the image on the user's screen, and not the way it gets there. That's like saying the printing press is the copy of the book it prints.

I'm not arguing who's right or who's wrong here. Simply that this opinion is totally divorced from my simple minded view of things. I'd be interested in a discussion (in plain legalese, please) of why I'm wrong on both counts.
5.17.2007 3:42pm