Re: Linking to Infringing Works on the Web

From: John T. Mitchell <mitchell[_at_]interactionlaw.com>
Date: Tue, 20 Dec 2005 19:00:01 -0500

Assuming the webmaster, as appears to be the case, has infringed both the right of reproduction and the right to display the work publicly (or perform it publicly, as the case may be), I don't see liability for the person who points to it.

There is no exclusive right to look at, read or watch the work, so people visiting the website infringe nothing. (Copyright maximalists would argue that the RAM buffer bits constitute infringement, but I don't buy that.) Consider this:

1. It is never copyright infringement to read a copyrighted work -- even if you read from a stolen or from an infringing copy. Similarly, it is never copyright infringement to sneak into a theater without paying, regardless whether the performance of the work in the theater is an infringing one.
2. If I buy an infringing copy, or pay to watch an infringing performance, I am still not guilty of direct infringement, but may be guilty of contributory infringement.
3. Your facts are more like someone standing out in the street telling people "they are showing XYZ movie in that theater -- it is a great movie, and you should not miss it." If the theater is performing it publicly without a license, or performing it publicly with a license but from an infringing copy the theater made, the theater may be guilty of copyright infringement, but viewers who neither knew of the infringement nor solicited it should not be guilty of even contributory infringement. The person on the street "linking" these viewers to the opportunity to watch the performance would seem to me to be even more remotely associated with the infringement.

That's the way I would approach it -- with the caveat that I'm not offering legal advice, and don't know the devil that may be lurking in the details.

John

---

John T. Mitchell
Interaction Law
1717 K Street, NW, Suite 600
Washington, DC 20036
http://interactionlaw.com
1-202-415-9213
1-202-318-9169 (fax)

On 12/20/05 2:30 PM, "Smith, Robert E." <smithre[_at_]ctsfw.edu> wrote:

> Dear Friends:
>
> Is there any case law addressing the following scenario?
>
> A webmaster digitizes in full a work still protected by copyright.
> Without checking with the rights holder he/she places the work on the
> internet. Contacted later, the rights holder objects to the presence of
> their work on the web, but the webmaster in question leaves the work on
> their website.
>
> A third party cites the infringing online version of the work. This
> party adds a link to this version of the work to encourage interested
> visitors to read it.
>
> Thanks!
>
> Bob
>
> Rev. Robert E. Smith
> Electronic Resources Librarian
> Concordia Theological Seminary
> Fort Wayne, Indiana
> "Translatio traditio est."
> -- attr. St. Jerome
>
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Received on Wed Dec 21 2005 - 05:00:01 GMT