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Copyright Law... — Part 4
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Fair Use and the Internet
Merely because material is displayed on the Internet does not mean you can copy it.
Merely browsing a web site containing copyrighted material may, theoretically, constitute copyright infringement. However, courts have acknowledged that while browsing may, on its face, infringe on copyright, it will, in most foreseeable cases, be a fair use.
Linking and Framing
A link that connects a user to a site containing infringing material rises to the level of contributory infringement. Therefore, if a linked site contains infringing material, the link may give rise to secondary liability for contributory or vicarious infringement on the part of the linking site, particularly if the linking site is promoting the copying, transmission, public display or public performance of material at the linked site.
To the extent that the linked material is not infringing in itself, the reproduction, distribution, performance, or display that results from the link may not be authorized, and therefore may constitute copyright infringement in its own right.
Illustrative Case: Kelly v. Arriba Soft Corporation, 280 F.3d 934 (9th Cir. 2002) involved inline linking and framing by a visual search engine of copyrighted photographs. In response to a user’s query, Arriba, the search engine, displayed the results of its search as a series of “thumbnail” images. As discussed above, Arriba would then link its users to the full sized images, often bypassing the home page and advertisement that proceeded the material. However, before Arriba had initiated this practice, a user could click on the thumbnail and view the full version within the context of the Arriba’s web site.
The first issue concerned the reproduction of the photographs as thumbnail images. The second involved the use of inline links and frames to display those images within the context of the search engine’s web site.
The search engine’s display of the full-sized images was held not to be a fair use. Pulling the images into the search engine’s web site did not serve a different purpose or add new expressive elements to the photographs. The practice harmed the photographer’s existing market by discouraging traffic to his web site, where he sold advertising space as well as books and travel packages. Accordingly, the court held that the unauthorized inline linking to or framing of copyrighted photographic images was not a fair use, but constituted an infringement of a copyright holder’s public display right.
“Thumbnails,” imprecise copies of low resolution, scaled down images, are widely exploited by web sites. Generally, a website will use a thumbnail as a reference device, and embed a link in the image, which will, in turn, send a user to a high resolution, full scale version of the image. In Kelly, the court found that the use of thumbnail images was a fair use. The images constituted transformative use: thumbnails “were much smaller, lower-resolution images that served an entirely different purpose than [the] original images....” The thumbnails did not have an adverse impact on the photographer’s market. In fact, they would enhance his market by creating a demand for the larger images.
Streaming Media
A single transmission of music or video can simultaneously infringe on a copyright holder’s reproduction, distribution, public display and performance rights, in addition to the right to make derivative works.
Video Pipeline v. Buena Vista Home Entertainment: The defendant, Video Pipeline, created and streamed movie trailers to its clients, video retailers, for exhibition to their customers. The court held that this practice infringed on the plaintiff’s reproduction, public performance, and distribution rights, as well as its right to make derivative works. The streams were not defensible under the fair use doctrine. The court found that the use furthered a commercial purpose, since the service derived a direct financial benefit from the streams – its sole purpose was to advertise and promote video rentals. Moreover, the use was not transformative, since no new “creative ingenuity” was involved in preparing the previews, aside from “snipping and clipping.”
Peer-to-Peer File Sharing
File sharing refers to a process in which devices controlled by end users, known as peers, interact directly with each other to transfer files between them, rather than using an intermediary, such as a central server, to transfer files. The design of some file-sharing networks employs a central server to house a publicly accessible and searchable index of files available over the network (Napster). Other designs eliminate centralized servers altogether (Kazaa). When peers engage in the unauthorized trade of copyrighted material, the copyright holder’s reproduction and distribution rights are implicated.
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001): Various record companies brought an infringement action against Napster, an Internet service that facilitated the sharing of digital music files among its users. The files themselves–the infringing material–always remained on user systems. However, Napster maintained a central server that indexed the contents of the network. This feature allowed users to search for particular files of interest and to initiate a peer-to-peer transfer of those files. This functionality was the basis for holding Napster secondarily liable for the infringing acts of its users.
The count held that the actions of the defendants were not fair use. The use was commercial because the users of the network received for free what they normally would have to buy, namely, compact discs. Similarly, the actions were not transformative. The service added no new creative or expressive elements to the copyrighted material. Finally, the service harmed the copyright owner’s existing market for the sale of musical compact discs.
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