Advanced Copyright Issues on the Internet - Fenwick & West LLP

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considered a derivative work. One could argue that the material on the linked site is neitheraltered by the link nor “incorporated” into the linking site, but is seen in its original form whenthe user arrives there as a result of the link.Viewed a different way, one could treat a site as a virtual collective work comprised ofall material available to be viewed by the user in the course of browsing through the site. Linkscause an “incorporation” – at least in a virtual sense – of the linked material into this collectivework, thereby in some sense creating a derivative work. If the linked site material enhances thevalue of the linking site, the linked site owner might argue that the linking site is “based upon”the linked site and therefore constitutes a derivative work. 2089The fair use or implied license doctrine may apply to many out links, because it is nodoubt the case that many site owners will want their material disseminated as widely as possible,and references in to the site through links from other sites will be considered desirable.However, in some instances the linked site owner may argue that out links cause harm, and suchharm should defeat a fair use or implied license defense. For example, nonconsensual links mayresult in burdensome amounts of traffic on the linked site from users the linked site is nottargeting. The owner of the linked site could argue that such unwanted traffic prevents theowner from distributing copyrighted material on its site to its desired audience, thereby harmingthe potential market for its material. Alternatively, if the linking site is undesirable for somereason in the eyes of the linked site, the linked site might allege the linking diminishes thecommercial value of its copyrighted material at the linked site. This might be the case, forexample, if a site distributing pornographic material were to link to a religious site distributingreligious material. 2090In addition to the issues of direct infringement discussed above, if a linked site containsinfringing material, the link may give rise to contributory infringement on the part of the linkingsite, particularly if the linking site is promoting the copying, transmission, public display orpublic performance of material at the linked site. As noted in the previous Section, the SPAinstituted a complaint against an OSP for contributory infringement based in part on theprovision of links to Internet sites where unauthorized copies of the plaintiffs’ software could be2089 “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musicalarrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction,abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17U.S.C. § 101.2090 Linking also raises a number of trademark issues. If the link consists of the linked site’s company name,trademark or logo, there is a danger of confusing site visitors about the source, affiliation or sponsorship ofeither the linking or the linked company’s goods or services. The language surrounding a link may also implyan endorsement by the linked company. For example, a list of links to “our many satisfied customers” states anendorsement by those customers of the linking site owner’s activities. From the opposite end, a linking siteshould carefully consider any explicit or implied endorsement it makes of the linked site’s goods or servicesover which it has no control. Linking to a site that contains defamatory material might make the linking entityitself liable as a “re-publisher” of the defamatory material by pointing users to the material. See Kopitzke,“Think Links: Web-Page Owners Should Consider Legal Consequences of Hypertext Links to Others’ Sites,”San Francisco Daily Journal (Dec. 20, 1996), at 5.- 454 -
found. Linking to a site containing infringing material may also give rise to vicarious liability, ifthe linking site derives financial benefit from the link.As discussed in Section III.C.5(b) above, the DMCA provides a safe harbor under certainconditions to OSPs who set up out links to infringing material without knowledge of theinfringement.Inline links may provide an even more direct basis for legal liability than out links. Aninline link causes a reproduction of the linked material to be “pulled in” to the linking site, andtherefore may cause an infringement of the right of reproduction, display, or performance, ormay constitute the creation of an unauthorized derivative work, just as if material had beenclipped from a printed source and placed in one’s own material. An inline link may also causean infringing access or transmission of copyrighted material under the WIPO treaties.Although beyond the scope of this paper, both out links and inline links may raise issuesof trademark infringement as well as copyright infringement. The trademarks of the linked siteare often used as an icon on which the user may click to reach the linked site, and the trademarkowner may argue that such use constitutes an infringement. In addition, both out links and inlinelinks may give rise to allegations of false implications of sponsorship or endorsement of thelinking site by the company affiliated with the linked site or material, or of confusion as tosource of the linked material.There have been a number of cases challenging linking and framing on copyrightgrounds: 20911. The Shetland Times CaseA recent case out of Scotland illustrates one type of harm that a linked site ownerperceived to result from links to its site. In The Shetland Times Co., Ltd. v. Wills, 2092 theplaintiff, The Shetland Times (“Times”), maintained a website containing copies of articles thatappeared in the printed version of its newspaper. Users visiting the site were initially presentedwith a “front page” containing headlines. Clicking on a headline linked the user to the full textof the article. The Times planned to sell advertising space on the front page.The defendant, The Shetland New (“News”), also maintained a website. News tookverbatim the headlines from Times’ site and placed them on News’ Web page to allow users atNews’ site to link directly to the full text of Times’ articles, without having to first view Times’front page. This bypassing of Times’ front page obviously caused harm to Times’ ability to selladvertising on the front page, since those readers of Times’ articles who arrived at the articles2091 In addition to the United States cases discussed in text, in Jan. 2001, an online European recruitment company,StepStone, obtained an injunction in Germany against OFiR, a Danish media group, preventing OFiR fromdeep linking (bypassing its home pages) to StepStone’s web site. The injunction was based on new Europeanlaws on database and copyright protection. Jean Eaglesham, “Recruiter Bans Rival’s Links,” available as ofJan. 18, 2001 at http://news.ft.com/ft/gx.cgi/ftc?pagename=View&c=Article&cid=FT3YQ8AC2IC.2092 Scotland Court of Session, Oct. 24, 1996.- 455 -
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ADVANCED COPYRIGHT ISSUESON THE INT
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6. Peer-to-Peer File Sharing 57(a)
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(xv) Craigslist v. Naturemarket 140
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(iii) Gordon v. Nextel Communicatio
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(a) Facebook v. Power Ventures 263C
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l. UMG Recordings v. Veoh Networks
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3. The MetroGuide Litigation 5134.
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crucial question whether the MAI ap
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machine or device. The term “copi
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terminal emulation program is not s
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describes the status of transition.
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sections of the Uruguay Round trade
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(b) The WIPO Copyright</str
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ecording industries, opposed any op
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in the case of Article 7, an earlie
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fact that copyright law has traditi
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and downloading of unauthorized cop
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downloads. “She provided the faci
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The defendant also argued that it c
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copying enhanced the defendants’
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copying was a fair use. The court r
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were brought against MP3.com as wel
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The principle distilled from these
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ecorded, the appropriate packets co
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commands and engages in no volition
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loaded the original copies of the s
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(b) Notwithstanding the provisions
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would have “independent economic
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such sound recordings because they
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(o) use in certain other cases of m
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matter belongs entirely to the jury
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7. The Immunity of the Audio Home R
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playlists with title and artist inf
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ecordings, other than with respect
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performance right was implicated by
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performances because the RS-DVR cus
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“[w]here a transmission is of a d
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although the court noted that the O
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images to allow users to recognize
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prima facie case of infringement as
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The district court concluded that t
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was no greater than necessary to ac
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court concluded that Google’s use
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The Ninth Circuit agreed, however,
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would likely succeed in establishin
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of its secondary liability claims b
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of ownership, or by rental, lease,
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(1) Cases Holding That Mere Posting
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unauthorized copy of a sound record
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(2) Cases Holding That Mere Posting
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version of the image displayed in t
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was downloaded at least once [by pe
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Copyright Act.”
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e able to make an end run ar4ound t
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original and copies of their works
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Section 602(a) was obviously drafte
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potentially site the infringement a
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“fixation,” and the fixed copy
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transmission.” It is not relevant
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equire treaty signatories to provid
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2. Literary works, including comput
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already adequately addressed the co
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the exemption only to “computer f
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6. “Sound recordings, and audiovi
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of circumventing a technological me
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(iii) Sony Computer Entertainment A
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injunction prohibiting the defendan
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measures protected Blizzard’s rig
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(xi) CoxCom, Inc. v. ChafeeCoxCom l
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The court rejected a number of defe
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entire files within the software wh
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user detection feature would not pr
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that it was not supposed to be able
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The paper also raised concern about
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microchip contained a computer prog
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[T]he statutory exemption found in
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DeCSS), and not dissemination of th
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within the games themselves,” whi
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check the validity of the CD Key co
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(vi) Sony Computer Entertainment Am
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Provisions(13) Other Cases Filed Un
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Streambox Ferret corrupted complete
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In addition, the court, citing Nimm
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1201(a)(3)(B) provides that a techn
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Links “to sites that automaticall
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Having rejected all constitutional
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under the Copyright</strong
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Department to block it from prosecu
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DVD player has the authority of the
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industry, which included a financia
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set to “Restricted,” including
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portion of the analog signal, the p
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software constitutes a violation of
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intended to ban only those circumve
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authentication sequence required th
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If any single byte of the Toner Loa
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that the defendant had copied the T
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code in sequence to be sent to the
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demonstrating the homeowner’s wil
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The court’s statements might impl
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Chamberlain’s operating software
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and fix the malfunction. The Federa
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- Second, the court’s interpretat
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With respect to the first reason, t
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The plaintiff brought a claim for v
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copyright owner. The plaintiff alle
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copy and the scanned copy did not r
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crawler’s operation. 955 The cour
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plaintiffs also alleged that the de
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characteristics or uses of an accus
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found that Filipiak knew at the tim
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(iv) MDY Industries, LLC v. Blizzar
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concerned that digital television b
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An important thing to note is that
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In March of 2005, a German court, o
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and, if reproduced in digital forma
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ackup copies may not be distributed
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(f)Protection of Certain Industrial
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(4) Adaptations of Unprotectable El
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awarded “shall constitute compens
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copyrighted songs through peer-to-p
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Finally, the court rejected the RIA
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efall Fatwallet as opposed to its s
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(2) abrogate or restrict the limita
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On Line (AOL), may constitute infri
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server other than the original serv
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to material on a site to a single u
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could argue that caching inherently
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4. Cases Adjudicating Caching Under
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The court also found that Field sho
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[Plaintiff] argues that merely by v
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The court ruled that, as a result o
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liability for contributory infringe
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However, the court was careful to n
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that online users saved in their de
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Napster argued that its users’ do
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drive do not constitute a “digita
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have not shown that the majority of
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erroneously concluded that sampling
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established artists’ songs render
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generalized knowledge that the Naps
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Napster “when linked to demonstra
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The Ninth Circuit’s view of the v
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[C]ontributory liability may potent
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On appeal in Napster I, the Ninth C
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“All parties shall use reasonable
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plaintiffs’ reading of the paragr
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fundamentally altered copyright lia
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works and files. This burden-shifti
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Next, the court turned to Napster
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Napster’s standing to challenge t
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(2) The Scour.com LawsuitAnother ca
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trafficking in copyrighted material
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Judge Posner, the Supreme Court in
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The court also rejected a challenge
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when the user logged off, that user
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Turning to the material contributio
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how “probable” the noninfringin
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also warned existing Australian use
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As explicated below, the Supreme Co
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The Required Threshold of Showing o
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The Court also noted that even Grok
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In the absence of other evidence of
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With respect to the first principle
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It is mindful of the limitations fa
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Whether the Seventh Circuit’s app
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product to be used to infringe sugg
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make some effort to mitigate abusiv
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It is important to recognize that t
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include any details of the filterin
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eferences to “reasonable” knowl
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infringements were occurring and ha
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over the course of three or four ye
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argument as insufficient, noting th
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summary judgment. The court denied
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were engaged in copyrighted infring
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(a) The Netcom Case and its Progeny
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content found within the sites maki
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On appeal, the Ninth Circuit affirm
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district court granted the defendan
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infringed its trademarks and copyri
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satisfied because Master had the po
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BitTorrent users had taken place in
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obligation of providing Defendants
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(1) Safe Harbors - Definition of a
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not make a copy of the material dur
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contributory copyright infringement
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The Ninth Circuit found that there
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and the material was transmitted th
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On appeal, the Seventh Circuit affi
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Banned WebmasterIf a webmaster, ide
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it operated in order to provide its
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infringement, it would need to be a
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transmission of such material to a
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Thus, Google’s cached meets the r
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identification of the copyrighted w
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identified them “with sufficient
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Because RemarQ had received adequat
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supply the preceding two elements,
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policy that provides for the termin
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Turning first to the issue of knowl
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court noted that because LoopNet’
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Page 407 and 408: that a defendant can look for enfor
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Page 411 and 412: e. The Aimster/Madster Lawsuits. Th
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Page 415 and 416: With respect to the issue of contro
Page 417 and 418: epeat infringer’s access, suggest
Page 419 and 420: listings to Amazon’s attention, t
Page 421 and 422: platform amount to a right and abil
Page 423 and 424: link to view all 16 lower resolutio
Page 425 and 426: Finally, with respect to the issue
Page 427 and 428: servers to be accessed by other mea
Page 429 and 430: and such a holding would be contrar
Page 431 and 432: The court also rejected UMG’s arg
Page 433 and 434: Louis Vuitton v. Akanoc Solutions.
Page 435 and 436: failing to satisfy the requirement
Page 437 and 438: arguing that linking to or publishi
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Page 441 and 442: Finally, the court ruled that, as a
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Page 445 and 446: Prince’s behest, based not on the
Page 447 and 448: DMCA are served by requiring copyri
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Page 451 and 452: On Nov. 3, 1998, the Copyri
Page 453 and 454: the Internet, and encompasses the d
Page 455: D. Linking and FramingThe practice
Page 459 and 460: and programming services to Total N
Page 461 and 462: MasterCard prominence over any othe
Page 463 and 464: 6. The Intellectual Reserve CaseIn
Page 465 and 466: [H]yperlinking does not itself invo
Page 467 and 468: defendant web page’s text and adv
Page 469 and 470: The court found stronger evidence o
Page 471 and 472: Batesville dealer, the Veterans Soc
Page 473 and 474: ight of public performance and the
Page 475 and 476: agreed that AM/FM webcasting was no
Page 477 and 478: 2. The Digital Performance Right -
Page 479 and 480: digital transmission services, impo
Page 481 and 482: (b) Eligible Nonsubscription Servic
Page 483 and 484: proceeding. To be eligible for the
Page 485 and 486: On June 18, 2003, the Copyr
Page 487 and 488: On Aug. 23, 2007, SoundExchange als
Page 489 and 490: - On June 1, 2001, Launch and other
Page 491 and 492: genres and unrated quota. 2249 Alth
Page 493 and 494: embodied in phonorecords or digital
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Page 497 and 498: to assert claims based on the makin
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Page 501 and 502: F. First Sales in Electronic Commer
Page 503 and 504: This provision seems to have been d
Page 505 and 506: thereof. 2297 In February of 2003,
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(b) Wells Fargo v. WhenU.comSimilar
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(c) 1-800 Contacts v. WhenU.comA th
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the domain name www.www1800Contacts
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pop-up and pop-under ads from appea
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copyright holder’s rights, then t
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