Re: Copyright & Discovery

On Mon, 9 Nov 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> Putting aside fair use for the moment, it seems to me that making the
> work available for copying (not just for inspection with the clear
> understanding that no copies are to be made) would be contributory
> infringement. There is direct infringement, and knowledge and
> contribution on the part of the indirect infringer.

(Like Bob, I'm putting aside fair use for the purposes of this post; in fact, I believe fair use would apply in many or most cases of this type.)

I realize that the courts have recently muddled contributory infringement in the copyright side of things (as opposed to the patent side, where the doctrine originated), but I still find the better formulation for contributory infringement to be that the defendant supplied something that enabled infringement but was not capable of any substantial noninfringing use.

"Contribute" in the context of contributory infringement is a term of art. That defendant merely "contributed" to the infringement as the word is used in ordinary conversation is far too mushy that we should hang liability on it. In this case, providing the material to the other party permits them to inspect and identify the material (e.g., to enable the requesting party to obtain its own copy) in addition to making copies. That to me should shoot down contributory infringement.

I also note that there's another species of indirect infringement that might be a better fit: inducing infringement, where the defendant is inducing the person who directly infringed to perform the infringement. That _may_ be applicable under these facts, if the person producing the material suggested the copying be done; or it may not.

It occurs to me that everything I've written above applies equally well to the recently-discussed issue of library reserves, too.

Returning to the fair use argument: my gut instinct is that the availability of materials to litigants is of such importance that the purpose and character of the use in this instance ought to overshadow the other factors, including 107(3), making this a rare case where the work can be copied in its entirety as a fair use.

I think it's worth remembering that section 107 is a codification of judicial law that was made to prevent the copyright statute from hobbling what would otherwise be permissible uses of the work. Section 107 is not the source of the fair use doctrine; it is a restatement of it. Just as there are privileges in the area of defamation law to enable a litigant to press his or her case and communicate in court without being hampered by a threat of a defamation action, so must there be a privilege to do so unhampered by a threat of a copyright action. I think the fair use doctrine provides that privilege. Whether we characterize it as an uncodified privileged use or a codified fair use is more of an academic matter.

--
Terry Carroll       | "Report of the Committee On Governmental Affairs,
Santa Clara, CA     | United States Senate, To Accompany S. 1364, An Act To
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Modell delendus est |  - Title of U.S. Senate Report 105-187, May 11, 1998