Neil Netanel wrote:
>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).
This suggests that infringement is rampant, at least if there are many works contained in online databases where the copyright holder has not given authorization. It's not simply the database producers, the online vendors, the gateway companies, and independent research firms like mine. Most libraries --special, public, university, etc. -- perform searches for patrons. They all are then infringers too.
That may well be the case. But even if we are infringers all, a special place must be reserved for the publishers, in any system that makes sense. After all, if I infringe, it is by passing on one copy of a work to a client. (In one sense it's not a copy, since I don't keep it. If I give copies to more than one person, that's clearly infringing, as I said earlier.) The publisher is the only one with a real ability to secure the proper permission, or refuse to send the work on to a database company. If the database companies and online vendors had to confirm the legitimacy of each article, there would be no online databases.
Now the producers and vendors cover themselves here with various kinds of "hold harmless" agreements that in effect put the responsibility on the the publisher in any event, which is where it belongs. The problem is that us "end users" (and although I do research for others, I'm more of an end user than anything else) have no such responsibility-shifting agreements with the vendors, nor are we in a strong enough economic position to require one.
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