Re: Re: fourth fair use factor

I believe that Kelly v. Arriba Soft
<http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20030707_9th_revised_ruling.pdf> is the kind of case you are looking for. Kelly's works were freely accessible to Arriba's bots (and to any other user). When analyzing the fourth factor, the court said that:

"Kelly’s images are related to several potential markets. One purpose of the photographs is to attract internet users to his web site, where he sells advertising space as well as books and travel packages. In addition, Kelly could sell or license his photographs to other web sites or to a stock photo database, which then could offer the images to its customers."

However, when discussing the second factor (Nature of the Work - creative or fact-based, and whether published or not) the fact that "Kelly’s images appeared on the internet before Arriba used them in its search image," weighed in Arriba's favor.

Perfect 10 is different because their content was never freely accessible from their site. One has to be a subscriber to get access to the Perfect 10 content. Google (and other image search bots) got the images from (unauthorized) sources other than Perfect 10's site.

-Andy

Andrew SkinnerLopata

asl[_at_]efn.org

jrfriedman[_at_]litproplaw.com wrote:

> 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. 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.
>
> 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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Received on Thu Nov 02 2006 - 04:15:01 GMT