On 11/10/98, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> "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.
My conclusion is based on something more than your description. I'm assuming that the party supplying the copyrighted material knows that the other party is going to copy it. Essentially, they are palming off the responsibility for the copying onto the other side. It's as if someone said to me, "Please make a copy of that manual for me." And I reply, "No, that would be a copyright violation, I'll give it to you so that you can do it."
> 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.
I've never heard of this except in the patent context. Do you have any cases that actually discuss inducement of infringement in copyright?
> 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.
Heh, I haven't been litigating very long, but in that *very* short time it seems like a lot less document production would be a good thing. So, I'm not sure that characterizing the availability of documents as being "of such importance" is close to any rational reality. Moreover, one assumes that if we're talking about copyrighted works like software manuals, the other party can get it in other ways.
Mind you, I'm not disagreeing that the copying is fair use. Ultimately, I think that most courts would scoff at any suit brought claiming infringement in these circumstances. Still, I'm not sure that your argument about importance is a winner. Interestingly enough, a copyright litigator at my firm, when asked this question, also responded with the same "gut" feeling that it's fair use. Seems to me that seasoned litigators may have some understandable biases in this area.
:-)
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