FW: Baker article in NYT

From: Netanel, Neil <nnetanel[_at_]msmail.law.utexas.edu>
Date: Wed, 02 Nov 94 14:51:00 CST

I sent this message a couple of days ago and it doesn't show up on my computer has having been distributed. Since I know that you have had some problems with your computer, I am sending it again.

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From: Netanel, Neil
To: cni-copyright
Subject: Re: Baker article in NYT
Date: Mon, Oct 31, 1994 2:13PM

     On October 28, John Rosenberg wrote, if I understand him correctly, that an online researcher who downloads copyrighted material pursuant to an agreement with a data base vendor would not infringe the copyright in the material, even if the vendor has no authorization from the copyright owner to provide it to the researcher, so long as the researcher abides by its contract with the vendor and so long as the researcher does not know that the vendor has no authorization.

     This might or might not be a description of the law as it should be. But it is not a correct description of the law as it is. Copyright recognizes no defense of innocent infringement (although good faith may be taken into account in a determination of damages). So if the copyright owner has not granted or licensed to the vendor the right to distribute or display the material and to make it available for reproduction, then researcher's reproduction of the material is an infringement (unless it qualifies as a fair use or other exemption to infringement under the particular circumstances). Similarly, if the author has not granted or licensed to the publisher the right to reproduce the material digitally and to make it available for electronic distribution or display, then the vendor has infringed the author's copyright even if the vendor innocently believes that the publisher does have that right. In sum, each party on the chain infringes, even if it acts in reliance on its predecessor's right to make the material available -- and, in fact, even if the predecessor warrants that it holds that right. The party's sole recourse would be to bring an action against its predecessor for breach of warranty and for indemnification under their contract.

Neil Netanel
Assistant Professor
University of Texas School of Law
nnetanel[_at_]msmail.law.utexas.edu Received on Wed Nov 02 1994 - 21:01:29 GMT