First, I would like to thank those on the list who were good enough to respond to my question about the language from the House Report on derivative works. It was most helpful.
That discussion brought to mind an issue that was discussed on another list and which has troubled me ever since. Many of you are probably aware of the lawsuit brought in February of this year by various large news organizations against TotalNEWS (TN). Many causes of action were alleged, including copyright infringement.
In this discussion one of the members of the list, an attorney who specializes in intellectual property, suggested that TN could be violating the plaintiffs' right to create derivative works in TN's framing of the other news services' web sites. His argument went like this (if that attorney is also a member of this list and I got any of the details of his analysis wrong, my apologies):
He likened the TN web site to a collage (referring to Mirage, a rather controversial 9th circuit case) and said that TN was taking the information from the news sites and transforming it, in conjunction with TN's frames and other content.
Then it got even stickier. Inasmuch as TN didn't really take anything but, rather, provided a link such that the user would actually do the taking, the attorney made a claim for contributory infringement, calling the framer's page and his link a facilitating device.
There are at least two distinct issues here. One is whether or not the framed web site can constitute a derivative work of one of the plaintiff's web sites, and the second is can TN be a contributory infringer? As to the second issue, unless you can make a case that the user is infringing, which is almost impossible, I don't see how anyone can be a contributory infringer an infringement to contribute to. The only way I see around that obstacle is to say that the user is infringing simply by linking but that the infringement is consented to. And you would then have to conclude that the scope of that consent doesn't include TN's contribution.
Comments?
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