Re: Re: Kelly v. Arriba Soft (new opinion from 9thCir.)

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Fri, 01 Aug 2003 15:56:32 -0400

• sstouden[_at_]thelinks.com wrote:

> The reason I believe the courts will find server uploading of ungated
> files to be an intentional placement of the content so uploaded
> into the public domain is because it would be impossible to police what a
> user who downloaded such a file does with it.

You are going (way) beyond what I have argued for to make deep-linking legal. I think that implied or explicit licence arguments are much easier, because the legal standard for granting a licence is much lower than transfering or abandoning copyright.

> No case I know of has said that "The interent is not public domain", nor
> am I familiar with a case that says the inverse?

That would be an extrodinary result. I stumbled across one decision relevent to the standard for abandoning your copyright. It contains numerous other citations. The suit is HADADY CORP. V. DEAN WITTER REYNOLDS, INC., 739 F. Supp. 1392 (C.D. CA 1990). The standard for abandonment given there requires a clear manifestation of the intent to abandond the copyright. In other words, their is no "implicit abandonment".

<quote>
Abandonment occurs when the copyright proprietor intends to surrender a copyright interest in his work. Lopez v. Electrical Rebuilders, Inc., 416 F. Supp. 1133, 1135 (C.D. Cal. 1976); 3 Nimmer on Copyright § 1306 at 13-130 (1989). To find abandonment, "the copyright owner must have clearly manifested that intention through some affirmative act." Goldstein, Copyright § 9.3 at 160 (1989); see also Transgo, Inc. v. Ajac Transmission Parts [F. Supp. 1399] Corp., 768 F.2d 1001, 1019-20 (9th Cir. 1985), cert. denied, 474 U.S. 1059, 106 S. Ct. 802, 88 L. Ed. 2d 778 (1986).
</quote>

> If all people who are connected to the internet download a copy
> of the file, then all people in the community of internet users have a
> copy of the same file, how can one argue that the original owner of the
> content could still maintain a monopoly interest?

You would start your argument by citing the copyright statutes that give the copyright holder the exclusive right to authorize the creation of copies, derivitives, and distribution. The fact that you have used retained and exercised your right to authorize a billion copies does not place any constraints on you to authorize the one billion and first copy.

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