...the owner of copyright under this title has
the exclusive rights to do and to authorize
any of the following:
(2) to prepare derivative works based upon
the copyrighted work;
Instead of conveying the authorized copy from the webserver to its intended recipient, Comcast is intercepting the original copy of the file and making a derivative version of the work. Unless they received special permission from each website owner (which is unlikely), Comcast is infringing the someone's copyright every time they make a modified copy without permission.
How many HTML files have they willfully[1] modified?
[1] why willful? They published the technical details of how they modify the original work in an RFC.
Copyright concerns copies. When Comcast injects their code in a page before delivering it to me, they have distributed a copy which is subject to copyright laws.
When I download a page and modify it for myself without distributing the modified copy, it is not subject to copyright laws.
I'm not sure they are equivalent. One is being done by someone else perhaps without your knowledge (most people are not tech savvy and won't even understand what Comcast has done). The other is being done by you explicitly to your own "copy" of the work. I don't think the ad-blocker argument would hold up in court.
But this line of reasoning got me thinking...I've seen some pretty loose interpretations of the CFAA over the years. I'm not sure what the law says about Comcast's privileged position as an ISP, but I would think that in most cases, specifically altering data between two networks counts as unauthorized access, no?
In this case, one could argue that adblocking is like using a marker to blackout sentences you don't want to read in your personal copy of a book or newspaper.
The same as using a blue light filter on your computer (modifying the output of every program, copyrighted work, website, and text) vs wearing blue-blocker (yellow) sunglasses to the movie theater or library.
Not really the same thing at all. Comcast is modifying content, and profiting off a service that delivers that derivative content. That is clear willful infringement. User modifying their own content locally is not infringement, since the content is not redelivered or sold.
You're free to tear up your copy of Harry Potter once you buy it from the bookstore, but you're not free to (as the bookstore) add a prologue to every book and sell it as Harry Potter by Comcast.
1. Can it be considered "modified enough" to be considered derivative if it's the original file, plus some Javascript to provide a pop-up notification?
2. These MITM alerts are typically customer-beneficial and customer-relationship-oriented; the purpose is to alert that the user is getting close to a bandwidth cap. Similarly, there's current talk of somehow making ISPs or service providers deliver EAS alerts. Comcast already has to do this for EAS alerts on its television service. Does Comcast violate copyright when it interrupts a television program to show a federally required EAS alert?
3. Captive portals are a well-established instance where a page requested is not what's delivered. No one is accusing them of copyright infringement.
The fact that you can easily describe what their modifications do as a new feature (w notification) that wasn't part of the original work is stro9ng evidence that their modifications were transforative.
> These MITM alerts are typically customer-beneficial and customer-relationship-oriented;
That doesn't give them the right to make a derivative work based on my webpage. I'm not their customer!
> the purpose is to alert that the user is getting close to a bandwidth cap
So what? Communicating with their customers doesn't require violating the copyrights of many 3rd parties. 3rd parties shouldn't even be involved.
Instead of vandalizing a lot of webpages, they could:
* Simply send only their own page instead of appending of trying to mix it into other people's copyright protected works. This is how captive portals worked ever since they were invented.
* Instead of trying to notify their customers in-band with the service they provide, send any necessary warnings to the phone number (or other contract information) listed on the customer's account. This is what many businesses did in the past, and many still do.
* (re: bandwidth limits) They could stop trying to impose artificial scarcity and use a business model with more honest pricing.
* They could add a small message display and alert light (and buzzer?) to the modem/router.
> 1. Can it be considered "modified enough" to be considered derivative if it's the original file, plus some Javascript to provide a pop-up notification?
They're altering the functionality of it, fairly substantially imo. I would argue that copyright should protect your IP from being subverted to serve additional, annoying pop-ups.
> Does Comcast violate copyright when it interrupts a television program to show a federally required EAS alert?
In that case Comcast is not altering the contents of the work, it is replacing the content with other content. I don't think that's a violation of copyright at all.
> 3. Captive portals are a well-established instance where a page requested is not what's delivered. No one is accusing them of copyright infringement.
Again, they are not modifying the returned content, they are refusing to display the requested content and returning alternative content.
>> 17 U.S.C. § 106
Instead of conveying the authorized copy from the webserver to its intended recipient, Comcast is intercepting the original copy of the file and making a derivative version of the work. Unless they received special permission from each website owner (which is unlikely), Comcast is infringing the someone's copyright every time they make a modified copy without permission.How many HTML files have they willfully[1] modified?
[1] why willful? They published the technical details of how they modify the original work in an RFC.