Re: TotalNEWS & Derivative Works

Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> ... is it really such a bad thing to allow someone to
> inline an image which you make available for free on your Website, which
> is not your trademark, and which is not used in competition with you or
> to deceive the public? Perhaps this is a sort of free riding that we
> should let alone. Alternatively, it may be that *some* but not all IMG
> links are morally troubling. If so, we need a rule for distinguishing
> the good from the bad.

I am inclined to agree with this thought. However I find it hard to construct an analysis which says that it should be OK to use an IMG link to a certain image from a certain page, but it should be illegal to make a copy of the image and display that copy on the page. The fact that all of the legal theories that we have come up with (admittedly I am talking about only 3 participants in this discussion so far) involve commercial disputes reminds me of the suggestion that all private use should be considered as fair use. So how about a rule that any use of any material displayed on the web, whether by linking or by copying and re-displaying is presumptively legal? The presumption could be rebutted by a showing of harm, either financial or reputational.

John Kasdan
<kasdan[_at_]columbia.edu> Received on Thu Jun 19 1997 - 18:50:32 GMT