Re: Article - Internet Linking: The First Amendment Is Alive And Well.

From: Bob Stock <bstock[_at_]mindspring.com>
Date: Sat, 28 Oct 2000 09:32:41 -0700

At 01:49 PM 10/27/00, Ross Runkel wrote:
>Article - Internet Linking: The First Amendment Is Alive And Well.
>http://www.lawmemo.com/ip/articles/linking.htm

With respect to the Utah Lighthouse Ministry case, Mr. Shapiro makes the decision sound easier than it was. The use of certain adverbs like "certainly," "clearly," and "obviously" always make me pause because they often are a proxy for conclusory statements. Thus, Mr. Shapiro's statements (1) "clearly infringed the plaintiff's copyright," (2) "the Court had little difficulty," and (3) "the Court had little difficulty determining" omit the analysis that the court itself avoided.

Mr. Shapiro stated:

"The Court noted that anyone who downloads the infringing material is guilty of copyright infringement -- non-consensual copying of copyrighted material constitutes infringement . . . ."

It's not clear that a user who "downloads" copyrighted material from a website without the copyright owner's consent infringes. Let's take two web-based scenarios:

1. I get onto Disney's website and, just by being there, I "download" Disney's copyrighted material (I copy it to my computer). I have probably violated Disney's copyright. The only way I can avoid the charge of infringement is if I claim that I had Disney's implied consent to copy and/or, even without consent, my copying was fair. Disney will no doubt agree that I had its consent.
2. I get onto an anti-Mormon church website that has copyrighted material of the Mormon church. Just by being there, I "download" that material. I have probably violated the Mormon church's copyright. The Mormons, unlike Disney, do not operate the website and will assert that there was no consent for me to copy. They are more likely to charge me with infringement.

But from the user's perspective, assuming that I did not know that one website was "authorized" and one not, how are the two scenarios different? Technically speaking, copyright infringement is a matter of strict liability, but most of the time copying is an affirmative act, and one *knows* what one is copying. On the web, that is often not the case. And I am only discussing the issue of consent, not the issue of fair use. (Fair use is not even *mentioned* in the court's decision.)

This is but one example of the court's superficial reasoning. I don't think the result (of contributory infringement) is so "clear" or so minimally difficult to reach as Mr. Shapiro makes it out to be.

For an article I wrote about the case, see "Dangerous Address: Posting URLs of Infringing Web Sites Held to be Contributory Infringement," Los Angeles Daily Journal, February 18, 2000.

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Bob Stock <bstock[_at_]mindspring.com>
http://www.geocities.com/Paris/1206/

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Received on Sat Oct 28 2000 - 16:34:04 GMT