A lexicon presents the language of a field or area. The "HP Lexicon" began as a website where contributors collected information about people, places, and things that inhabit the Harry Potter universe. Those who care about these things Harry Potter regard it as the most complete and authoritative guide to the world of Harry Potter, and it attracts upwards of 25 million visitors per year. The HP Lexicon’s editor decided to publish the HP Lexicon in book form, and RDR Books agreed to do so. Ms J.K. Rowling and Warner Brothers filed suit against RDR, alleging claims for copyright and trademark infringement, and seeking to stop publication of the book.
The issue is fair use, the most misunderstood area of copyright law. Judge Posner has noted that "copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work . . . is not fair use." Ty Inc. v. Publications International, 292 F.3d 512 (7th Cir. 2002). His economic approach is not really codified in the law, but it does focus on the core concept: is the new work a substitute for the copied work. Following Judge Posner's logic, the Lexicon seems to complement rather than replace Ms Rowling's works, and to do her no harm.
But first, fair use. Judge Posner aptly points out that the statute confuses rather than helps. It says that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching ... scholarship or research, is not an infringement of copyright." 17 U.S.C. § 107. In deciding whether a particular use is fair, the "factors to be considered shall include(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." This is a list, not a test. So, what is the judge in the Harry Potter case to do?
That is easy enough -- right. Often courts confuse the "sweat of the brow" as the source of copryightable material. It is not. It is just the originality and expression, no matter how difficult or easy the effort, that is protected. The real issue for Ms Rowling is whether the Lexicon infringes her rights to develop derivative works. The Copyright code defines a derivative work as "a work based upon one or more preexisting works, such as a translation, musical arrangement, 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." 17 U.S.C. § 101. Does producing a Lexicon in book form compete with the rights of Ms Rowling and her empire to produce her own Lexicon as a derivative work? Yes; but is a Lexicon a derivative work? That is, does it recast, transform, or adapt the work?
Saturday, April 19, 2008
Tuesday, April 8, 2008
Deemed Distribution of Nude Women . . . I Mean Pictures . . .
The internet, occasionally, has been used to disseminate pictures of nudity. Whether art or free expression, it is distribution, and if the material is copyrightable, then the owner has the right to their distribution. So, does the Ninth Circuit's analysis of pictures of nude women help us understand the copyright issues relating to file sharing?
Perfect10 sues Google, objecting to their use of the Perfect10 pictures in the Gooogle system. Actually, Perfect10 asserts infringement of its display rights, which really does not help us understand file-sharing issues if the files are not pictures, but music. And the Ninth Circuit discusses the genealogy case, Hotaling, and Napster for its analysis.
The Ninth Circuit panel states that "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images 'available' violates the copyright owner’s distribution right. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997); Napster, 239 F.3d 1004. Hotaling held that the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works. Hotaling, 118 F.3d at 203. Similarly, the distribution rights of the plaintiff copyright owners were infringed by Napster users (private individuals with collections of music files stored on their home computers) when they used the Napster software to make their collections available to all other Napster users. Napster, 239 F.3d at 1011-14." The Ninth Circuit panel calls this "deemed distribution."
Since Google did not have a copy of Perfect10's nude women, but linked to them, the Ninth Circuit reasoned that Google could not distribute copies. File sharers do own a copy of the work. They are a big step down the road to deemed distribution.
Next,the even bigger hurdle, contributory infringement. “One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930.
Perfect10 sues Google, objecting to their use of the Perfect10 pictures in the Gooogle system. Actually, Perfect10 asserts infringement of its display rights, which really does not help us understand file-sharing issues if the files are not pictures, but music. And the Ninth Circuit discusses the genealogy case, Hotaling, and Napster for its analysis.
The Ninth Circuit panel states that "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images 'available' violates the copyright owner’s distribution right. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997); Napster, 239 F.3d 1004. Hotaling held that the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works. Hotaling, 118 F.3d at 203. Similarly, the distribution rights of the plaintiff copyright owners were infringed by Napster users (private individuals with collections of music files stored on their home computers) when they used the Napster software to make their collections available to all other Napster users. Napster, 239 F.3d at 1011-14." The Ninth Circuit panel calls this "deemed distribution."
Since Google did not have a copy of Perfect10's nude women, but linked to them, the Ninth Circuit reasoned that Google could not distribute copies. File sharers do own a copy of the work. They are a big step down the road to deemed distribution.
Next,the even bigger hurdle, contributory infringement. “One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930.
File Sharing . . . Do Students Really Have Direct Knowledge?
So the big issue is whether merely placing copyrighted files in a shared folder available to others over the internet infringes the copyright owner's exclusive right to distribute the copyrighted work. But "distribute" is a term of art in the copyright statutes, meaning the exclusive right "to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. § 106(3). Applying the statute, placing a copyrighted file in a shared folder, for public use, seems to show intent to transfer ownership (in contrast to, say, placing the files in a folder accessible only by yourself). This still begs the question of whether an actual transfer must be shown.
The Napster case in the Ninth Circuit approaches this differently, focusing on contributory copyright infringement. “[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); see also Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996). The Ninth Circuit explains, in Napster, that "liability exists if the defendant engages in “personal conduct that encourages or assists the infringement.” Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 693, 706 (2d Cir. 1998). The Ninth Circuit then stated that Napster had direct knowledge of actual infringement, and the walls came tumbling down. Does this "direct knowledge" requirement apply to the student file sharer using a service like Limeware?
The Napster case in the Ninth Circuit approaches this differently, focusing on contributory copyright infringement. “[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); see also Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996). The Ninth Circuit explains, in Napster, that "liability exists if the defendant engages in “personal conduct that encourages or assists the infringement.” Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 693, 706 (2d Cir. 1998). The Ninth Circuit then stated that Napster had direct knowledge of actual infringement, and the walls came tumbling down. Does this "direct knowledge" requirement apply to the student file sharer using a service like Limeware?
Monday, April 7, 2008
File Posting or File Sharing? Which is Illegal?
So put yourself in the position of a judge. The record industry brings to you the head of the local college student. The copyright statutes bring you statutory damages of $750 per violation at a minimum. It is the copyright version of sentencing guidelines, leaving you a complete lack of discretion.
It has to be tough to be the judge. If this does not seem right, what do you do? Well, tighten the liability standards. And that is the question judges now face in file-sharing cases.
Judge Nancy Gertner of Boston felt that "merely exposing music files to the Internet is not copyright infringement" because those doing so could claim "they did not know that logging onto the peer-to-peer network would allow others to access these particular files." Judge Kenneth Karras in New York said just the opposite, that placing a copyrighted music file in a computer folder shared by peer-to-peer software users could amount to illegal publication of it.
At issue is what level of proof is required: just making the copyrighted digital files available on a shared network, or a showing that the digital files were actually shared. Judge Neil Wake of Phoenix is addressing this very issue in Atlantic v. Howell. The Howells contend that their file-sharing program was "not set up to share" and that the files were "for private use" and "for transfer to portable devices, that is legal for 'fair use.'" Judge Wake initially rejected their argument, but is now re-considering. But first, the Church of Jesus Christ of Latter Day Saints and Napster.
Yep. The Mormon Church was sued for placing an unauthorized copy of a genealogicial work in its collection and including the copy in its catalog or index system, making the copy available to the public. The District Court said this was not enough, but the Fourth Circuit reversed. It reasoned that "[w]hen a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public," violating §106(3). So, is a shared folder on limeware a "public library?" Judge Hall, in dissent, reads the statute, and says "the owner of a copyright does not possess an exclusive right to 'distribute' the work in any conceivable manner; instead, it has the exclusive right 'to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending [.]' 17 U.S.C. § 106(3)." He notes that all use was in the library, and perhaps should be copyright infringement even if the work was not lent, but just used in the library; but, under the statute, it is not illegal distribution because Congress said "lending" is required. He's the minority in the Fourth Circuit, though.
But what about that public file? If another uses the folder, it seems like that would be lending the file. That fails to answer the question of what needs to be proved: merely an offer or an actual file-share? If one plays a song in the presence of another, is that lending? If the file remains only on your hard disk, but another plays it remotely, is that lending? The Ninth Circuit already has discussed file sharing in Napster, has it not? And everyone knows Napster. Or do they?
It has to be tough to be the judge. If this does not seem right, what do you do? Well, tighten the liability standards. And that is the question judges now face in file-sharing cases.
Judge Nancy Gertner of Boston felt that "merely exposing music files to the Internet is not copyright infringement" because those doing so could claim "they did not know that logging onto the peer-to-peer network would allow others to access these particular files." Judge Kenneth Karras in New York said just the opposite, that placing a copyrighted music file in a computer folder shared by peer-to-peer software users could amount to illegal publication of it.
At issue is what level of proof is required: just making the copyrighted digital files available on a shared network, or a showing that the digital files were actually shared. Judge Neil Wake of Phoenix is addressing this very issue in Atlantic v. Howell. The Howells contend that their file-sharing program was "not set up to share" and that the files were "for private use" and "for transfer to portable devices, that is legal for 'fair use.'" Judge Wake initially rejected their argument, but is now re-considering. But first, the Church of Jesus Christ of Latter Day Saints and Napster.
Yep. The Mormon Church was sued for placing an unauthorized copy of a genealogicial work in its collection and including the copy in its catalog or index system, making the copy available to the public. The District Court said this was not enough, but the Fourth Circuit reversed. It reasoned that "[w]hen a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public," violating §106(3). So, is a shared folder on limeware a "public library?" Judge Hall, in dissent, reads the statute, and says "the owner of a copyright does not possess an exclusive right to 'distribute' the work in any conceivable manner; instead, it has the exclusive right 'to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending [.]' 17 U.S.C. § 106(3)." He notes that all use was in the library, and perhaps should be copyright infringement even if the work was not lent, but just used in the library; but, under the statute, it is not illegal distribution because Congress said "lending" is required. He's the minority in the Fourth Circuit, though.
But what about that public file? If another uses the folder, it seems like that would be lending the file. That fails to answer the question of what needs to be proved: merely an offer or an actual file-share? If one plays a song in the presence of another, is that lending? If the file remains only on your hard disk, but another plays it remotely, is that lending? The Ninth Circuit already has discussed file sharing in Napster, has it not? And everyone knows Napster. Or do they?
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