Wednesday, June 15, 2011

Course packs and copyright law

Nikhil G. Abraham and Matthew E. Kopko at the University of Chicago developed Sibylus, a cheaper, online alternative to printed course packs.

Within an article in The Chronicle of Higher Education, there is mention of [IP] lawyers giving them advice on the legality of their idea as to copyright:

For an answer, they met with a number of professors, the university’s general counsel, and lawyers at several firms in Chicago. The verdict was that their plan seemed within the bounds of copyright law. “Lawyers being what they are, no one is going to put anything down in writing, but the reaction has been positive,” Mr. Abraham says.

There was an allusion to the Perfect 10 case in CA9, which decision begins:

In this appeal, we consider a copyright owner’s efforts to
stop an Internet search engine from facilitating access to
infringing images. Perfect 10, Inc. sued Google Inc., for
infringing Perfect 10’s copyrighted photographs of nude mod-
els, among other claims. Perfect 10 brought a similar action
against and its subsidiary (collectively,
“”). The district court preliminarily enjoined
Google from creating and publicly displaying thumbnail ver-
sions of Perfect 10’s images, Perfect 10 v. Google, Inc., 416
F. Supp. 2d 828 (C.D. Cal. 2006), but did not enjoin Google
from linking to third-party websites that display infringing
full-size versions of Perfect 10’s images. Nor did the district
court preliminarily enjoin from giving users
access to information provided by Google. Perfect 10 and
Google both appeal the district court’s order. We have juris-
diction pursuant to 28 U.S.C. § 1292(a)(1).1

Of thumbnails:

Google’s use of thumbnails is highly transformative.
In Kelly, we concluded that Arriba’s use of thumbnails was
transformative because “Arriba’s use of the images serve[d]
a different function than Kelly’s use—improving access to
information on the [I]nternet versus artistic expression.”
Kelly, 336 F.3d at 819. Although an image may have been
created originally to serve an entertainment, aesthetic, or
informative function, a search engine transforms the image
into a pointer directing a user to a source of information. Just
as a “parody has an obvious claim to transformative value”
because “it can provide social benefit, by shedding light on an
earlier work, and, in the process, creating a new one,” Camp-
bell, 510 U.S. at 579, a search engine provides social benefit
by incorporating an original work into a new work, namely,
an electronic reference tool.


The fact that Google incorporates the entire Perfect 10
image into the search engine results does not diminish the
transformative nature of Google’s use. As the district court
correctly noted, Perfect 10, 416 F. Supp. 2d at 848-49, we
determined in Kelly that even making an exact copy of a work
may be transformative so long as the copy serves a different
function than the original work, Kelly, 336 F.3d at 818-19.

Adsense arose:

district court stated that Google’s AdSense programs as a
whole contributed “$630 million, or 46% of total revenues”
to Google’s bottom line, but noted that this figure did not
“break down the much smaller amount attributable to web-
sites that contain infringing content.” Id. at 847 & n.12 (inter-
nal quotation omitted).

Bottom line:

We conclude that the significantly transformative
nature of Google’s search engine, particularly in light of its
public benefit, outweighs Google’s superseding and commer-
cial uses of the thumbnails in this case. In reaching this con-
clusion, we note the importance of analyzing fair use flexibly
in light of new circumstances. Sony, 464 U.S. at 431-32; id.
at 448 n.31 (“ ‘[Section 107] endorses the purpose and gen-
eral scope of the judicial doctrine of fair use, but there is no
disposition to freeze the doctrine in the statute, especially dur-
ing a period of rapid technological change.’ ”) (quoting H.R.
Rep. No. 94-1476, p. 65-66 (1976), U.S. Code Cong. &
Admin. News 1976, p. 5680)). We are also mindful of the
Supreme Court’s direction that “the more transformative the
new work, the less will be the significance of other factors,
like commercialism, that may weigh against a finding of fair
use.” Campbell, 510 U.S. at 579.

Footnote 1 tacked injunctions as to unregistered copyrights:

Registration is generally
a jurisdictional prerequisite to a suit for copyright infringement. See 17
U.S.C. § 411. But section 411 does not limit the remedies a court can
grant. Rather, the Copyright Act gives courts broad authority to issue
injunctive relief. See 17 U.S.C. § 502(a). Once a court has jurisdiction
over an action for copyright infringement under section 411, the court may
grant injunctive relief to restrain infringement of any copyright, whether
registered or unregistered. See, e.g., Olan Mills, Inc. v. Linn Photo Co., 23
F.3d 1345, 1349 (8th Cir. 1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d
1490, 1499 n.17 (11th Cir. 1984).


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