A couple caveats -- see below.
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[_at_]sipr.org; www.sipr.org
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of jrfriedman[_at_]litproplaw.com
Sent: Tuesday, October 31, 2006 8:55 AM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: fourth fair use factor
Thank you for your response. My query was specifically about fair use, not about whether a court may find damages when the plaintiff did not suffer a monetary loss. (I am well aware of Deltak, having relied on it at trial long ago, although the court refused to entertain our argument based on it).
I also am aware that if one is relying on a fair use defense, one is conceding that one has committed infringement.
[RJC -- this is a philosophical debate, with court decisions on the opposite side. Sections 107 to 120 are NOT defenses to infrinement, but limitations on the exclusive rights of the copyright holder. So if a use is a "fair use" it is NOT an infringement. One concedes that one has "copied," but NOT that one has "committed infringement." Although the practical effect may appear the same, the difference can have important influence on the outcome -- the defendant is not just "excused," but "justified" to borrow a distinction from criminal law.]
The prospective plaintiff in my situation, a non-profit that lives on sponsorship and grant money, makes its works available for free on its Web site, although it specifies that users may make only personal non-commercial use of them. My client, also a non-profit, reproduced some of the works in a public-interest publication, thinking that it was all right for it to do so; and the plaintiff is claiming infringement. This almost certainly will not go to litigation, but for purposes of negotiation, I am assessing whether the use that my client made would be held to be fair use. In analyzing the facts under the fourth factor, my first thought was that since the plaintiff makes its works available for free, my client would prevail, but to make sure I was considering the whole picture, I thought I would ask whether there are cases holding that even when the plaintiff does not charge for its works, and would appear to have no intention of ever doing that.
[RJC -- even though many commentators claim otherwise, neither the law nor the judges/juries are purely "economic" actors. The "market" for a work, includes the right to give it away or not. Whether the copyright holder charges or not goes to "actual damages," but at least theoretically has very little to do with the liability for statutory damages. Even in your scenario/case situation, the copyright holder may argue that it is using the work to "reward" visits to its web site. For your client to "give it away" in some other context definitely hurts the copyright holders "market" where the work is the payment -- or at least I would argue if I were on the other side. In this context, the "framing" cases are dead on -- the copyright holders want the content viewed/given away on the copyright holder's terms, not anybody else's, and the courts have upheld the right to use a copyrighted work in that way.]
I hope that clarifies my query.
Jessica Friedman
On Mon, 30 Oct 2006 15:20:30 -0500
"Raymond Dowd" <rdowd[_at_]dunnington.com> wrote:
>
>
> 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)
>
> Raymond J. Dowd
>
> Partner
>
> Dunnington, Bartholow & Miller, LLP
>
> 477 Madison Avenue, 12th Floor
>
> New York, NY 10022
>
> Tel: (212) 682-8811
>
>Fax: (212) 661-7769
>
> rdowd[_at_]dunnington.com
>
>
>
> my new blog Copyright Litigation Blog
> http://copyrightlitigation.blogspot.com/
>
>
>
> ________________________________
>
>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?
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