Advanced Copyright Issues on the Internet - Fenwick & West LLP

infringed nor have any documents attached to it depicting the infringement, was based on. 357Only a small group of employees were able to see the images within the law firm’s office, whichthe court found was “similar to a family circle and its acquaintances.” 358 The purpose of theprinting was only to make a record of what had been viewed and for use as supportingdocumentation for the defense the firm planned to make for its clients. 359 “It would be an absurdresult if an attorney defending a client against charges of trademark and copyright infringementwas not allowed to view and copy publicly available material, especially material that his clientwas alleged to have infringed.” 360The second fair use factor weighed in favor of the firm because the nature of HealthcareAssociates’ web sites was predominantly informational. The third factor weighed in favor of thefirm because, although entire images were copied, employees at the firm needed to copyeverything they viewed because they were using the screenshots to defend their clients againstcopyright and trademark infringement claims. The firm also had a duty to preserve relevantevidence. Finally, the court found that the fourth fair use factor also favored the firm, becausethe value of Healthcare Associates’ web sites was not affected by the Harding’s firm’s use, andthe images viewed and copied were archived versions of the web site that Healthcare Associatesno longer utilized, suggesting their worth was negligible. Accordingly, the court held that theHarding firm’s use of the images obtained through the Wayback Machine constituted a fairuse. 361 6. ICG-Internet Commerce Group, Inc. v. WolfIn ICG-Internet Commerce Group, Inc. v. Wolf, 362 the court held that the defendant hadinfringed the plaintiff’s copy and public display rights in an adult video by posting the video tothe defendant’s web site. The court also ruled that the insertion into the plaintiff’s video of aURL link to the defendant’s web site constituted the creation of an infringing derivative work. 363D. The Right of Public DistributionSection 106(3) of the copyright statute grants the copyright owner the exclusive right todistribute copies or phonorecords of the copyrighted work to the public by sale or other transfer357358359360361362363Id. at *22-23.Id. at *24. The copyright statute defines a “public” display as one made in a place “where a substantial numberof persons outside of a normal circle of a family and its social acquaintances is gathered.” 17 U.S.C. § 101.Id. at *24.Id. at *24-25.Id. at *26-29. The court also ruled that the firm’s failure to preserve temporary cache files of the screenshotsthat were automatically created by the computers used by the firm’s employees to view the images through theInternet, and were also automatically deleted by the computers’ operating system, did not constitute spoliationof evidence. Id. at *30-38.519 F. Supp. 2d 1014 (E.D. Pa. 2007).Id. at 1018.- 90 -