Re: linking and copyright

On 03/28/2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Fri, Mar 24, 2000, T. R. Halvorson <pastel[_at_]btigate.com> wrote:
> >
> > When I went to sites in Australia and The Netherlands to read and
> > save copies of the whole Handbook for the sake of ascertaining and
> > documenting facts as steps in preparing an article on the case, I
> > had knowledge that the copies I would be reading and saving would
> > be directly infringing copies.
>
> so apparently you don't have a copy of the real handbook, but only a
> copy of the digital work, which may or may not be the real one, which
> may or may not be the "unpublished" one? if we haven't seen the "real"
> work, how can we say that the "copy" is infringing?

First of all, there's nothing that says a copyrighted work can't be fixed in digital form. One should not assume that the work is "real" only if it is fixed in printed (hard copy) form. But be assured that in order to prevail in a copyright case, the author must introduce the copyrighted work into evidence and compare it with the allegedly infringing work.

> i don't want to beat a dead cat, or kill a dead horse, but:
>
> 1. just curious: t.r.: did you think that your copying of this
> book was covered by "fair use"? if the Handbook was unpublished,
> or only "limited" published, what fair use is allowed? does not
> IRI's claim that the Handbook was unpublished stand as an effort
> to restrict anyone from publishing or copying any sections of it,
> no matter why? if not, why the insistence on the claim that it
> is "unpublished"?

I think this SHOULD be a fair use. There's no harm to the potential market (factor 4), because there is no potential market: the copyright holder isn't selling the work, and has no intention of ever doing so. Given that fact, I think the "unpublished" character of the work (factor 2) should not carry its customary weight. Factor 1 is satisfied as long as the defendants added sufficient original comment to qualify as a comment or criticism, and not merely a reproduction. Factor 3 is the only issue; did they post more than was necessary to make their point? I doubt it, but I don't really know.

But the fact is that courts routinely grant injunctions against the publication of "unpublished" material, no matter what the circumstances; it is virtually dispositive. In response to this trend, Congress added the following sentence to 107: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." But this doesn't seem to have had much effect on the courts.

> 2. "fair use" generally includes such things as copying or
> quoting sections for criticism, such as your article. why should
> not the Tanners be allowed under "fair use" to quote sections
> (well, perhaps not as extensively as they did, but that could
> be decided without a TRO) for the purposes of criticizing the
> LDS practices of (they say) not allowing members to permanently
> leave the church, when the church set these (unpublished) rules
> that say the opposite of their practice? it seems that the
> effort of the church here is to restrict the ability of the
> ULM to criticize them by quoting the recognized truth to them.
> and the idea that the work is unpublished is their ticket.

I agree with all of the above.

> now, if there is a strong possibility that the ULM might
> be able to argue fair use and free speech rights, should
> the court be so eager to issue a TRO and injunctive relief
> instead of making the parties argue the whole case in court?
> and isn't the court's reluctance to add The New York Times
> and The Salt Lake Tribune to the infringers (they made links
> to the sites before the contributor to the ULM BBS quoted them
> as doing so) mainly because that would be an outrageous
> affront to their free speech rights -- but does a web site
> have any?

Yes, websites have free speech rights, just as individuals do. But the U.S. Supreme Court has held (in Harper & Row) that the First Amendment does not provide a defense to copyright infringement separate and apart from the defense of fair use.

In fairness to the judge, it should be pointed out that the defendants are being represented by inexperienced counsel; and I believe they did not raise the fair use defense at the preliminary injunction stage.

> again, i say that if the courts cannot separate trade
> secrets from copyright, then the congress ought to.
> the congress should act only under the constitution,
> which allows copyright only to encourage the progress
> of science and the useful arts, not to allow another
> way for economic enterprises to protect trade secrets
> and prevent competition or criticism in the public
> arena.

The U.S. Supreme Court has held that Congress (and the states) have the power to protect trade secrets, separate from and independent of Congress' power to grant copyrights. I agree that we ought not to confuse the two; but if the result is lawful, it is hard to argue that how you get there is of great concern. Again, I reiterate my basic point: while it might make sense to condition copyright on publication, we have not done so. Unpublished works may be copyrighted. Fair use is the way to address abuses, and it is difficult to fault the court for not considering fair use when it wasn't raised by the defendant.

> 4. i think this question was raised earlier, but i
> haven't seen an answer -- if the Handbook was printed
> in editions earlier than 1998, and probably "lent"
> to a great number of bishops around the world, and
> registered and deposited only in 1998, then when
> does the copyright term begin?

Under either section 302 (if created in 1978 or later) or section 303 (if created but not published or registered before 1978), the copyright duration (as extended) for works made for hire is 95 years from the date of first publication, or 120 years from the date of creation, whichever comes first.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Mar 31 2000 - 22:59:19 GMT