Advanced Copyright Issues on the Internet - Fenwick & West LLP

Batesville dealer, the Veterans Society was authorized to use those photographs for at least somepurposes. Batesville argued, however, that the Veterans Society had exceeded the scope of itsimplied license by posting the photographs on its web site to promote a business other than itsown. The court rejected this argument, noting that there was no evidence that Batesville hadeven asked the Veterans Society to change its arrangements or had ever communicated to theVeterans Society its internal policy that its photographs were to be used to promote only theauthorized dealer’s business to whom the photographs were supplied. Batesville could haverevoked at any time the implied license to the Veterans Society or insisted that it revise its website in a way that satisfied Batesville, but had not done so. Accordingly, the factual record couldlead a reasonable jury to find that the Veterans Society’s implied licensed allowed the disputeduse of the images in question, and the court ruled that neither Batesville nor the defendant wasentitled to summary judgment on the implied license defense. 2147Turning to the defendant’s linking defense, the court rejected the defendant’s argument,based on the Ticketmaster Corp. v. Tickets case and the Bernstein case, discussed respectively inSections III.D.7 and III.D.5 above, that links can never amount to a copyright violation. Thecourt noted that those two cases suggest that the host of a web site who establishes a link toanother site that may be interesting to the host’s web site visitors does not undertake any generalduty to police whether the linked sites contain any material infringing the copyrights of others.Those two cases, however, did not support a sweeping per se rule that links can never give rise toinfringement. 2148The court cited the Intellectual Reserve case, discussed in Section III.D.6 above, for theproposition that, in extreme cases, even encouraging browsing of infringing web sites can violatethe copyright laws. 2149 “From that conclusion, it is easy to allow room for liability fordefendants who deliberately encourage use of infringing web sites by establishing links to thosesites. This is not a case where Funeral Depot merely found some useful material elsewhere onthe internet and encouraged its shoppers to link to those sites. Instead, Funeral Depot activelysecured control of the contents of the Veterans Society website and modified the website to use itfor its own purposes.” 2150The court noted that the “casket gallery” on the Veterans Society web site did not existuntil the defendant created those web pages, that it had designed and paid for them, it stillcontrolled changes to them, and they displayed the defendant’s phone number. The defendant’scontrol of the web pages was so complete that the owner of the Veterans Society was not awareof any changes to the casket portion of its web site. 2151 “These facts are unusual enough to takethis case out of the general principle that linking does not amount to copying. These factsindicate a sufficient involvement by Funeral Depot that could allow a reasonable jury to hold2147 Id. at 37,697-98. The court also rejected the defendant’s argument that its use of the Batesville photographswas a fair use. Id. at 37,698-701.2148 Id. at 37,701.2149 Id. at 37,701-02.2150 Id. at 37,702.2151 Id.- 469 -