[cap-talk] bundling designation and authority
iang at systemics.com
Thu Oct 13 08:48:07 EDT 2005
Sandro Magi wrote:
> He clearly stated his intent by explaining that he was investigating the
> legitimacy of the website involved.
Right. So his intent does not actually trigger
the "guilty mind" test that Nick writes of, nor
does it trigger clause 1.1 of the statute that
David posted. IMHO. Although what is clear is
that obviously those aspects need to be treated
with some delicacy and understanding, and the
court did not do that.
> Perhaps I was unclear in my explanation. The links on the web pages
> served by BT's web server, starting from the homepage, are taken as
> explicit authorizations. Any links or URLs not explicitly presented on
> these pages, are implicitly assumed to be unauthorized. This is how I
> believe the court is interpreting the web.
Right I think I agree with your interpretation:
The prosecution (presumably) presented and the
court (presumably) accepted that any URL that
was not specifically presented to the user was
This is a doctrine. *It is not an axiom*. And
in this case, this doctrine sits squarely against
and in competition with the RFC. Both have equal
standing in that neither have any more or less
standing in the law, because neither have been
> Thus, the legitimacy as specified in RFCs is irrelevant. BT did not
> provide a link to the URL the defendant attempted to access, thus his
> access was unauthorized .
I think I would prefer to say that the court
accepted the doctrine of "only presented links"
rather than say that the RFC is irrelevant.
If we go down the track of saying that the
RFCs are irrelevant, then we quickly come into
an area where the whole web site lacks founding
because it has not actually published any alternate.
Which leads me to the thought that the doctrine
of "only presented links" is and can only be
valid as an *extension* to the RFC. It must by
nature take the RFC and then extend from it,
and as a corollary it also must present somewhere
its extension, in writing, for it to carry enough
weight to battle the RFC.
Therefore, the RFC must be relevant.
> The fact that the link was not explicitly provided but was fabricated by
> the defendant is the difference here.
Yes, these seem to be facts. But are they facts of
relevence? Again it boils down to "you can enter
this site but you must follow these rules: which
are ... where?" As David Hopwood described, the
rules of the RFC explicitly permits typing of new
URLs. And the custom of the net follows that.
> You are using the RFC as an
> implicit authorization/contract that the web server must satisfy;
Yes, that's a reasonable characterisation. Actually,
I'd say it is quite explicit. It's written, it's
standardised, widely promulgated. If they did not
follow the "auth/contract" they would not have a
> if it
> were really a contract it would hold legal weight. RFCs do not hold
> weight as far as I know; seems to me, an RFC is merely an informal
> agreement between co-operating parties.
No, that's not good logic. In contract law, the
presence of a formal contract with CONTRACT on
the heading is not necessary to form a contract.
In determining what the contract is, the court
looks at many things, and fits it into the
framework of contract law. One of the things
they look at is the agreements between the
parties, and the customs of the industry; by
all the tests that could be construed, the RFCs
do hold weight and would pass as "material"
documents in contract discussions.
(Which isn't to predict the eventual discussion,
but a priori, it is not easy to rule out RFCs
as being not contracts.)
(I speak of common law here, things are different
under UCC and civil code ... and IANAL...)
> I think the ruling is a bit silly and worrying too, but it's not
> completely unfounded.
I think it wrong. The reason I think it
wrong is because I feel "there but for the
grace of God go I." If I can't figure out how
to have avoided those circumstances, without
the benefit of hindsight, then I feel the
ruling must be wrong.
Figuring out the how and where and why it is
wrong is of course a challenge, one that may
eventually rebound and cause me to readdress
my own logic on what is wrong!
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