RE: Re: Linking to Infringing Works on the Web

From: Roland Cole <cole[_at_]spi.org>
Date: Wed, 21 Dec 2005 15:20:01 -0500

The DeCSS cases would suggest that if the linker knew that the copy was posted illegally, and linked so that viewers could download and further transmit it, the linker might be guilty of contributory infringement.

"Viewing a web page" is technically a little different from "viewing a painting all the wall" since the very act of viewing creates at least a temporary copy on the viewer's computer. Most people leave their web cache set with its default value of 30 days, so that copy (unlike, say, a streaming video) resides complete on the viewers computer for 30 days, and may even be re-viewed several times, as the web browser will look to the cache before it looks back to the web page again.

However, most court cases I have seen treat this somewhat like 17 USC 117 treats "making a copy in order to use" as is required when a computer program on disk is loaded into RAM in order to be run. It is considered either (a) a statutory exemption or (b) fair use or (c) implicitly authorized by the very act of it being posted on the web. Of course if the posting is unauthorized, then the implicit license does not apply, but the viewer may still be an "innocent" infringer.

Roland J. Cole, J.D., Ph.D.
Executive Director
Software Patent Institute
5315 Washington Blvd
INDIANAPOLIS IN 46220-3062
317-727-8940; cole[_at_]spi.org; www.spi.org

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of John T. Mitchell Sent: Tuesday, December 20, 2005 7:00 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Linking to Infringing Works on the Web

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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Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Thu Dec 22 2005 - 01:20:01 GMT