Re: TotalNEWS & Derivative Works

On Tue, 13 May 1997, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> In order for Terry's argument to work,

To clarify -- it's not my "argument." I haven't made up my mind whether a case such as the TotalNews case, "deep links" etc. are infringing or not, and am not arguing for either side. I was just stating what I think the issues are.

> you have to make the user an
> infringer when he wasn't one doing things "normally." The reality
> is that most users who access TN's web site would not *know* that
> they are exceeding the scope of the license when they click on CNN
> or CBS. They are not doing anything differently than when they
> click on any link. And if after they clicked on one of the news
> links for the first time and saw the resultant information in the
> frame, they did realize at that point that what TN and they were
> doing was impermissible, they would have to be even more
> sophisticated to know that *before* clicking on the link. They
> would have to actually understand the underlying HTML to know that
> the link was going to act differently from other links.

I think you're adding a requirement for a culpable mental state for copyright infringement that is nowhere to be found in the statute.

An actor's mental state may go to damages (i.e., damages may be reduced for "innocent infringement" and enhanced for "willful infringement"), but there is no requirement for a culpable mental state for basic infringement.

As a practical matter, the actor's mental state will have a significant impact on whether to bother bringing a suit for direct infringement. But in a contributory infringement context like this, you don't really care whether the direct infringer's infringement was innocent, vanilla or willful -- you're just using that to establish the direct infringement as a stepping stone to bringing in the real target of interest, the contributory infringer defendant.

If you think the existence or lack thereof and scope of an implied license is not relevant, then in order to find no infringement from browsing, it must be on one of these grounds, I think. You must argue that either:

1. Browsing is neither reproducing a work in copies nor a public display or performance;
2. Even if it is one of these, the act of reproducing, displaying or performing is not being done by the person operating the browser; or
3. Some other exemption, such as fair use, makes the act noninfringing.

There is, of course, a fourth: that the act is authorized. But that's the soul of the implied license argument that you believe is immaterial.

I should add that if you think, as I do, that the existence and scope of an implied license is material, and you ultimately conclude that either there is no implied license or its scope has been exceeded, you still have to consider those three grounds, and each of them has some significant merit.

By the way, is anyone else dissatisfied with the term "implied license"? This phrase, to me, carries with it a connotation that the existence of such a license is determined subjectively, from the point of view of the putative licensor. That clearly doesn't hold with case law on the subject. I've seen a few Federal Circuit patent cases that use the term "inferred license," which I greatly prefer. It carries with it, quite properly, in my view, that the existence of the license is determined objectively, and if there's any point of view at all, it's that of the person in the position of the would-be licensee.

--
Terry Carroll       | "The invention provides means for continuously
Santa Clara, CA     | trapping sparrows and supplying a cat and 
carroll[_at_]tjc.com     | neighborhood cats with a supply of sparrows."
Modell delenda est  |                - U.S. Patent no. 4,150,505