joegratz.net

I’m liveblogging from Blog Law and Blogging for Lawyers, presented by Law Seminars International.

Raymond T. Nimmer:

First, ownership; then, content issues.

First, copyright. Copyright is automatic. [Booooo.] Posting online is not a waiver of copyright. Exclusive rights include copying, displaying, etc. Defenses including non-copyrightability, fair use, and license.

There are three potential owners of the site, from the copyright perspective. The “developer”, the “tool maker”, and the “client”. The fight is usually between the “developer” and the “client” — the web designer and the law firm, for example. The only way the law firm ends up with the copyright from a third-party developer is by transfer. Typically, the license of the development tool causes copyright, or at least some license, to arise in the developer.

Q: What about a partner who writes a blog post? Is a partner an employee for work-for-hire purposes? A: I don’t know. Allocate ownership by contract to make sure.

Q: What about an employee who says something dumb on a third-party blog? Who owns the post for DMCA takedown purposes? A: If we put aside the work-for-hire issue, bloggers own the copyright to their posts, and the site owner, if they’re a different person, gets an implied license.

If it’s a creative expression, we make the assumption, generally, that the person who wrote it is the owner.

Q: What’s the scope of the implied license? Display? A: It’s not a matter of which 106 right is implicated, but what the intent of the copyright owner was. Reproduction for certain purposes is probably licensed, but it’s hard to say it’s a blanket permission to reproduce. This can be taken care of by contract, including terms of use.

Q: Do we need a click-through? A: There’s plenty of caselaw that browsewrap is effective. It’s a notice issue.

Q: What sort of notice is sufficient? A: “Legal” doesn’t say much to me, but “Terms of Use” is good. Evan Brown: In Hubbard v. Dell, Illinois says we leave it up to the common sense of the average web user.

Consider conditions for transfer of ownership in the site design from the designer to the client. Pay attention.

Online is not free — no terms doesn’t mean public domain. In the Storm Impact case, there was a license prohibiting resale, but the notice was buried. The court said either they’re licensees or they’re infringers, so the defendant has to pick one, and they lose either way. [That’s fantastic news for the GPL, not that there was much question.]

Some things online are unprotected — laws (Veeck), digital images of 2D public domain works (Bridgeman), etc.

Scanning is making a copy. MAI v. Peak says that RAM copies are copies. Everything is a copy.

Tasini distinguishes between the ownership of copyright in a compilation and the ownership of copyright in each individual work enclosed therein.

BMG v. Gonzales means that downloading, even for review purposes before purchase, is not fair use.

Sampling something expressive is copying. In Video Pipeline, we learned that being promotional of the underlying work is not fair use.

Transformative use is fair use. Compare Arriba Soft with Perfect 10 v. Google. Google has an “aggressive view” of what fair use protects. The use of materials in a way that doesn’t replicate one of the copyright holder’s uses might be transformative.

De minimis use is not infringement. Compare Bridgeport with Newton.

Linking. If you just link, you’re not making a copy yourself; the copy is made on the user’s computer. But if you make the copy yourself, you might be infringing. And copying is not the only right — there’s display too. [I think he’s getting at inlining images and framing third party sites.] The law is unsettled on who’s doing the display when you frame or inline.

Incoming content. Provenance is an issue. Luckily, section 512 provides for a handy defense. But you can also be liable for indirect infringement — contributory, vicarious or “inducement” — but those require some mens rea.

You need procedures to comply with section 512. Take-down, notice, counter-notice, and so on. You get a free pass from copyright liability if you take down things based on complaints. The Rossi case says that the copyright owner must only have a good faith subjective belief that there’s infringement.

Q: How do you square the lack of knowledge requirement in 512 with Grokster? A: Well, inducement doesn’t require knowledge of a specific infringement, so the safe harbor probably does apply to a Grokster-type claim. [Interesting issue.]