Date: Mon, 30 Oct 2006 15:20:30 -0500
Jessica - I am not clear on the facts of your hypothetical. As Dr. Cole points out, if a hypothetical client displays copyrighted content on a website that resides on another's website (Kelly v. Arriba Soft/Perfect 10 v. Google) - that is infringement, even if the hypothetical client does not charge for it. Perfect 10 has put the ability to thumbnail another's images into question. Napster didn't charge for the music, they got in trouble for getting ad revenues each time someone else infringed and for encouraging people to infringe. If your client has someone else's copyrighted works reproduced in full on their website, then they are probably in trouble. As John Noble points out, Grokster's economic advantage was even more attenuated. An example of a full reproduction in a commercial book was the Second Circuit's decision in the Bill Graham Archives case, but that involved small images in a large book. For an example of a court imposing damages where there are no profits to the infringer and no lost sales to the copyright owner, check out Deltak v. Advanced Systems, a case I discuss in Chapter 16 of my recently-published Copyright Litigation Handbook (West 2006).
(please note new contact information)
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From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Roland Cole
Sent: Friday, October 27, 2006 5:09 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: fourth fair use factor
I think the "framing" decisions in effect did this, although not explicitly -- at least the fact that the P did allow "free viewing" did not bar a finding of infringement for framing that content.
Roland J. Cole, J.D., Ph.D.
Director of Technology Policy
Sagamore Institute for Policy Research
340 West Michigan, Canal Suite B
INDIANAPOLIS IN 46202 317-727-8940; rollie@sipr.org; www.sipr.org <http://www.sipr.org/>
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Jessica R. Friedman
Sent: Thursday, October 26, 2006 4:55 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] fourth fair use factor
Is anyone aware of a fair-use decision in which the court found that the fourth fair-use factor favored the plaintiff even though the plaintiff did not derive any monetary compensation from permitting people to reproduce its works? That is, the plaintiff permitted people to reproduce works from its Web site, but did not charge for the privilege?
Jessica R. Friedman
Attorney at Law
757 Third Avenue
Suite 1903
New York, New York 10017
Phone: 212-220-0900
Fax: 212-973-9101
jrfriedman[_at_]litproplaw.com <mailto:jrfriedman[_at_]litproplaw.com>
For more information:
www.literarypropertylaw.com <http://www.literarypropertylaw.com/>
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