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

> > 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>

Okay, let's say a company owns the copyright to a story, and places the text in a PDF, no copyright claims or anything, anywhere in the text (i'm just being thorough, i don't think it matters). The PDF was intentionally made with no PDF security on it, such that copying, printing, extraction, etc, are allowed. This was an intentional choice, but done for technical reasons.
A web master, acting within his job description at that company, uploads this PDF text to a non-password protected website that says absolutely nothing, anywhere.

A google search robot discovers it, and google searches related to the text in the PDF find it, and people can download it and make copies.

Has the company abandoned copyright in that PDF?

I'd imagine you'd say no.
But let's look at what Nimmer said:
"the copyright owner must have clearly manifested that intention through some affirmative act."

First, they intentionally chose not to disallow copying and printing. This was an affirmative act on their part (though not necessarily an intention to abandon copyright)
Second, the web master has also performed an affirmative act. He intentionally placed the file on the non-password protected website, available to all, with nothing anywhere saying it was copyrighted. This was an affirmative act, and to me, these two affirmative acts combined demonstrates a clearly manifested intention to abandon copyright. To you, it might not.

So how explicit must they be?
To whom, exactly, must they be explicit to?

After all, if they were really all that concerned about keeping their copyright, wouldn't they have been more careful?

Remember, there were no accidents in my hypothetical, no people acting without authority. Everything was intentional by people with the authority to do what they were doing.

--Dan Received on Mon Aug 04 2003 - 23:05:20 GMT