On Wed, 21 May 1997, Keith Handley <kehandley[_at_]amherst.edu> wrote:
>
> 1. Look at TotalNews's site, and see a pointer to CNN.
> 2. Click the CNN button.
> 3. TotalNews leaves its frame there.
> 4. Your browser asks CNN for data.
> 5. CNN's server sends you that data, and puts it in that frame.
It doesn't really matter the process of what happens (except, I guess, who makes things happen, which is in large part a problem with CNN's case. It is not Totalnews making the derivative work, or displaying the CNN content - it is (if anyone) the user). Now, you could say Totalnews has contributed to some sort of copyright violation, but I agree that I don't see how a direct display or derivative work claim could hold water.
> There's no reason why someone can't make a Web browser that is all
> ads but a tiny square in the center that has the content, or one that
> misspells every other word, or that makes every image a negative, or
> that strips out every image and replaces it with its own images. Is
> there any sort of copyright violation there? Heck, if you look at
> many pages with two different browsers, the appearance on the screen
> is not exactly the same: are each of these derivative works? I say
> they aren't.
I agree with you. But there is a spectrum. Radio stations don't get sued for making derivative works of the songs they play because they play them in a particular order or talk over them. Television manufacturers don't create derivative works when their artsy television box surrounds the content coming through the television. However, a magazine surely violates derivative work right (absent defenses) when it puts a copyrighted image on its cover surrounded by some interesting background photography.
> Finally, from the US Copyright code:
> >
> > To perform or display a work ''publicly'' means -
> > (1) to perform or display it at a place open to the public or at any
> > place where a substantial number of persons outside of a normal circle
> > of a family and its social acquaintances is gathered; or
> > (2) to transmit or otherwise communicate a performance or display of
> > the work to a place specified by clause (1) or to the public, by means
> > of any device or process, whether the members of the public capable of
> > receiving the performance or display receive it in the same place or
> > in separate places and at the same time or at different times.
I think what you are forgetting is that these rights are fairly strong, and the current theory amongst us prognosticators is that we can view web pages because we have a implied (inferred) right to do so (White Paper issues aside). Theoretically, CNN could attach almost any condition it wanted to such a license, including the condition that any content must not be viewed in a frame. If a user violates this condition, then they are violating the license (assuming the license contains this condition). I think anyone contributing to that violation could also be held liable... I think that is where Totalnews would be grabbed in. I think the theory is weak, but its there.
> So in the TotalNews case:
> Reproduction: done by CNN.
Yes. I think everyone would agree here.. (?)
> Derivative works: not applicable.
I think you are wrong here. While I think it should fail, I think the best claim for CNN is a derivative work violation (based on some sort of contributory theory). See above.
> Distribution: done by CNN.
Probably.
> Public Display: done by CNN.
Is there any public display here at all?
> Thus, TotalNews is in the clear.
Thus, Totalnews *SHOULD BE* in the clear w/r/t to the copyright claim. Its a whole other bag of worms w/r/t to Trademark, Unfair Competition, and Misappropriation claims... But thats another list..
-Gabe
Gabriel Wachob http://www.aimnet.com/~gwachob Law Student http://server.berkeley.edu/BTLJSoftware Engineer
gwachob[_at_]aimnet.com 3L & Editor, BTLJ - Boalt Hall School of Law Received on Thu May 22 1997 - 21:08:04 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:25 GMT