perhaps thousands—are made.
require end users to agree to licenses that
Unless this copying is a fair use, or is
limit or eliminate the right of first sale. For
done with express or implied permission,
example, Amazon’s end user agreement for
it is a violation of the copyright owner’s
its Kindle ebooks provides that users “may
reproduction right. Much of the copying
not sel , rent, lease, distribute, broadcast,
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 133
sublicense, or otherwise assign any rights to
rules of comportment. It is a place where
the Kindle Content or any portion of it to
a substantial number of people outside the
any third party.” Restrictive licenses like this usual circle of family or social acquaintances have been upheld by the courts.
are gathered. A digital transmission of
a work protected by copyright, which is
Right to create derivative works
shown on a computer in a bar, school,
A copyright owner also has the exclusive
conference hall, or other public place, is
right to create derivative works from the
considered a public display.
original work—that is, new works based
A display is also considered to be public
upon or adapted from the original work.
when the public can share in it individually
(See Chapter 7 for a detailed discussion.)
at home. For example, a television broadcast
A user who modifies a downloaded file by
is a public display even though each
annotating, editing, translating, or otherwise member of the viewing audience may see
significantly changing the contents of the file the broadcast in private. Similarly, a video creates a derivative work. Such a work would made publicly available on a website such as be an infringing work, unless it was created
YouTube would likely be viewed as publicly
with the copyright owner’s permission, or is
displayed even though the viewers of the
a fair use.
video are at home.
There is, however, one important exception
However, it’s important to differentiate
to the exclusive right to create derivative
between a public display and simply making
works: The lawful owner of a copy of a
material available for copying. Placing a
computer program may adapt or modify it
digitized version of a photograph in a file
solely for personal use. (17 USC § 117.)
online that users can download and view on
their computers is not a public display—it is
Public display rights
simply making a copy available to individual
members of the public. But if the same photo
Copyright owners not only have the exclusive automatically appears on the user’s computer right to make copies of their works, they also screen when he or she logged on to an online have the exclusive right to publicly display
service, it would be a public display.
them. A “display” includes showing an image
on a computer terminal connected with an
Public performance rights
information storage and retrieval system.
However, the fact that the display must
The owner of a written work such as a poem
be in public limits the display right. A
or play has the exclusive right to perform
public place is a place the public is free to
it in public—for example, to recite or act
enter without restriction, other than an
it in a public place such as a theater, or to
admission fee or an agreement to adhere to broadcast it to the public on television.
134 | THE COPYRIGHT HANDBOOK
What constitutes a public performance is
copy works for their own personal use have
governed by rules used to determine if a
much greater fair use rights than those who
display is public, discussed above.
copy for commercial purposes. Although
This means, for example, that a live
no court has so ruled, it seems likely that
transmission of a rock concert, movie, or
it is a fair use for private individuals to
radio show over a computer network would make temporary RAM copies of online files
constitute a public performance of the
in order to read or browse them on their
work. Unless permission was obtained, such computers.
a transmission would constitute copyright
It is likely also a fair use to download
infringement. But simply placing a digitized online files to a single hard disk or other copy of a rock concert video online for
permanent computer storage device for
downloading by users would not be a public personal use only, and even to print a single performance of the concert.
hard copy of an online file for personal use.
An audiovisual work is “performed”
EXAMPLE: Art downloads a copy of a copy-
whenever images and sounds are publicly
righted article from The New York Times
displayed in any sequence. However, a
website and stores it on his hard disk for
single photo, painting, or sculpture does not
future reference. This is probably a fair use.
“perform.” Thus, the public performance
right does not extend to pictorial, graphic,
Other uses can also be a fair use. This is
and sculptural works. The display right is
most likely where they are for educational,
considered sufficient for such works.
scholarly, or journalistic purposes. For
example, it may be a fair use to quote a
portion of an online text file in a newspaper
Fair Use Limitation on Copyright
Owners’ Exclusive Rights
article, college dissertation, or book.
In addition, the more “transformative” a
There is an extremely important limitation
use is, the more likely it will be a fair use.
on the exclusive copyright rights described
A use is transformative where the material
above: the fair use rule. Anybody can use
is used to help create a new and different
a copyright owner’s protected expression
work, not simply copied verbatim. Be
without permission if the use constitutes a
careful, however, that you don’t take so
fair use. Fair use applies in the online world much material from the original work that just as it does in the physical world.
your work would constitute a derivative
It’s difficult to describe any general rules
work—that is, a work “based on or adapted
about fair use, because it is always very fact from the original work.” Taking so much
specific. However, private individuals who
material can rarely be a fair use.
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 135
Linking, Framing, and Inlining
Limiting Liability With Disclaimers
In some cases, online linking, framing,
If a website owner is concerned about liability
and inlining can violate copyright and
for links but is unable or unwil ing to seek
other laws and should not be done witho
ut
permission from the linkee, a prominently
obtaining permission.
placed disclaimer may reduce the likelihood
of legal problems. A disclaimer is a statement
Linking
denying an endorsement or waiving liability
Linking is one of the most appealing
for a potential y unauthorized activity. A
features of the Internet: The use of
disclaimer is rarely a cure-all for legal claims,
hypertext links allows users to instantly
but if a disclaimer is prominently displayed
navigate from one website to another (or
and clearly written, a court may take it into
within a website) by clicking on the link.
consideration as a factor limiting damages.
It is not a violation of copyright to create
In some cases, such as trademark disputes, it
a hyperlink, but courts have held that it is
may help prevent any liability. For example,
a violation of the law to create a link that
in a case involving a dispute between websites
contributes to unauthorized copying of a
for two restaurants named Blue Note, one
copyrighted work if the linking party knew
factor that helped the lesser-known restaurant
or had reason to know of the unauthorized
avoid liability was a prominently displayed
copying and encouraged it.
disclaimer stating that it was not affiliated
with the more famous restaurant. ( Benusan
EXAMPLE: A website posted infringing
Restaurant v. King, 937 F.Supp. 295 (S.D. N.Y.
copies of a church’s copyrighted handbook
1996).) To minimize liability for any activities
at its site. The website was ordered to
that occur when a visitor is taken to a linked
remove the handbook, but subsequently
website, a webmaster may want to include a
provided links to other sites that contained
linking disclaimer on its home page or on any
infringing copies of the handbook. These
pages with otherwise troublesome links.
links were different from traditional
Here is a sample linking disclaimer:
hyperlinks because the website knew
and encouraged the use of the links to
By providing links to other sites, [name
obtain unauthorized copies. The linking
of your website] does not guarantee,
activity constituted contributory copyright
approve, or endorse the information
infringement. ( Intellectual Reserve, Inc. v.
or products available at these sites, nor
Utah Ministry, Inc. , 75 F.Supp.2d 1290
does a link indicate any association
(D. Utah 1999).)
with or endorsement by the linked site
to [ name of your website].
136 | THE COPYRIGHT HANDBOOK
Deep linking
to ask for permission before deep linking.
A link that bypasses a website’s home page
Otherwise, you could end up getting a cease
and instead goes to another page within
and desist letter from a lawyer.
the site is often called a deep link. Some
Framing
website owners object to the use of deep
links. They want all the people who use
Framing means that Website A shows
their website to go first to the home page,
visitors content from Website B—but
usually because advertising is posted there.
inside a frame on Website A. Framing
The use of deep links can cost such websites may trigger a dispute under copyright and
advertising revenue. In one of the first cases trademark law theories because a framed
of its kind, Ticketmaster sued a competitor site arguably alters the appearance of the
called Tickets.com partly because it linked
content and creates the impression that its
from its website to pages deep within
owner endorses or voluntarily chooses to
Ticketmaster’s site. The court held that deep associate with the framer. In a 1997 lawsuit, linking does not violate the copyright laws, TotalNEWS framed news content from
because no copying is involved. However,
media outlets such as CNN, USA TODAY,
the court held that Ticketmaster might have and Time. For example, the content of a a claim against Tickets.com on other legal
CNN Web page appeared within a frame
grounds, such as violation of trademarks
packed with advertising and information
or unfair business practices. ( Ticketmaster
about TotalNEWS. The lawsuit settled and
Corp. v. Tickets.com, 54 U.S.P.Q. 2d 1344
TotalNEWS agreed to stop framing and to
(C.D. Cal. 2000).)
use just text-only links.
Many copyright experts believe that deep
A subsequent court fight involving two
linking is not copyright infringement—
dental websites also failed to ful y resolve
after all, the author of a novel can’t prevent the issue. Applied Anagramic, Inc., a
readers from reading the end first if they
dental services website, framed the content
so desire, so why should a website owner
of a competing site. The frames included
have the right to determine in what order a information about Applied Anagramic as
user can access a website? Nevertheless, it’s
well as its trademark and links to all Web
prudent to be careful before deep linking
pages. A district court ruled that a website
to advertising-rich commercial sites. Many
containing a link that reproduced Web pages
such sites have linking policies posted. Some within a frame may constitute an infringing well-known websites, such as Amazon.
derivative work. The court reasoned that
com, welcome deep links. If a commercial
the addition of the frame modified the
website has no posted linking policy or says appearance of the linked site and such
that deep links are not allowed, it’s wise
modifications could, without authorization,
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 137
amount to infringement. ( Futuredontics
How Copyright Protects Different
Inc. v. Applied Anagramic Inc., 1997 46
Types of Online Works
U.S.P.Q.2d 2005 (C.D. Cal. 1997).)
Many different types of copyrighted
Inlining
works are available in the online world,
including text, graphics, photos, sounds,
Inlining is the process of displaying a
and electronic mail. Let’s see how copyright
graphic file on one website that originates at
protects particular types of online works.
another. For example, inlining occurs if a
user at Website A can, without leaving
Website A, view a “cartoon of the day”
Text Files
featured on Website B. Inlining makes it
Digital copies of text files stored in online
look like the linked-to file actual y originated databases pose no special copyright problems.
on Website A, instead of Website B.
They are entitled to the same copyright
In the first case involving inlining,
protection as printed copie
s of books stored
an image search engine called ditto.com
on the shelves of a bookstore. It is il egal for
used inline links to reproduce full-size
you to go into a bookstore with a portable
photographic images from a photographer’s
photocopier and make copies of the books
website. By clicking on the link, the user
displayed there or to recite a copyrighted
was presented with a window containing
book on the radio without permission from
a full-sized image imported from the
the copyright owner. Similarly, you may not
photographer’s website, surrounded by the
copy, distribute, adapt, perform, or display a
search engine’s advertising. The court held
digital version of a written text without the
that this inlining was not excused on fair
copyright owner’s permission unless your use
use principles and was an infringement.
constitutes a fair use.
(This portion of the decision was later
As mentioned above, making a single copy
reversed and set for trial.) In contrast, the
of a text file solely for personal use likely
court held that the search engine’s practice
constitutes a fair use. In addition, a copyright
of creating small reproductions (thumbnails) owner who uploads a text file to the Internet of the images and placing them on its own
or online service does so in order that other
website was permitted as a fair use. The
people can access and read it. Arguably, the
thumbnails were much smaller and of much act of uploading the work grants other users
poorer quality than the original photos and an implied license to download the work
served to index the images and thereby help solely for their personal use.
the public access them. ( Kel y v. Arriba Soft
Corp., 280 F.3d 934 (9th Cir. 2002).)
138 | THE COPYRIGHT HANDBOOK
Images and Sounds
music compositions that were uploaded
and downloaded to and from CompuServe
Images and sounds—photos, graphics, and
by subscribers. CompuServe agreed to pay
recordings—are fundamentally no different
$500,000 in damages and to work with
from text files for copyright purposes.
the publishers to help them license their
They are protected by copyright if they are
work to online users. ( Frank Music Corp.
original, minimal y creative, and fixed in a
v. CompuServe, Inc., No. 93 Civ. 8153
tangible medium of expression. Subject to
The Copyright Handbook Page 25