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The charm, not to mention the utility, of the World Wide Web arises in great part from its inherent unruliness. Anyone with the right software and access to an Internet service provider can design and launch his or her own Web site. The exponential growth of such sites has created an organic, unbounded market for ideas of all stripes. Meanwhile, hyperlinks provide instantaneous portals to Web sites, permitting visitors to zip between sites with blinding speed. Software and content is readily shared among Web sites and users, in the spirit of building a common, growing base of knowledge. Web site sponsors and users want and expect a free flow of information between and among sites and site users. These wild and wooly aspects of the Web, however, also create opportunities for mischief. When content from one site is “shared” without the author’s consent, the free flow of information can look suspiciously like copyright infringement. Technology, meanwhile, makes the unauthorized copying of Web site content — both words and images — fast and easy. Many times, an accused infringer will argue that his or her display of copyrighted work constitutes a “fair use” of the material. The federal Copyright Act provides an affirmative fair-use defense to a claim of infringement when, in simple terms, the use of the material was for an educational, news reporting or some other noble purpose, and a relatively modest portion of the work was copied. 17 U.S.C 107. However, what constitutes fair use of copyrighted material in terms of copying content for display on Web sites remains, to a great extent, undefined by the courts. Two district courts from the Central District of California recently waded into this thicket and announced decisions that provide some guidance regarding what constitutes a fair use of another’s copyrighted material as content on an Internet site. In Los Angeles Times v. Free Republic, 2000 U.S. Dist. Lexis 5669 (March 31, 2000), the court found that the defense was not applicable when a Web site operator had copied, wholesale, articles from the plaintiff newspapers. The court came to the opposite conclusion in Kelly v. Arriba Soft Corp., 77 F. Supp.2d 1116 (C.D. Cal. 1999), in which a photographer challenged a Web site’s cataloguing of his photographic images. The Copyright Act sets forth four factors that a court should consider in determining whether to apply the fair-use defense: the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion that was used in relation to the copyrighted work as a whole; and the effect of the use on the potential market for or value of the copyrighted work. In Los Angeles Times v. Free Republic, the Los Angeles Timesand Washington Postnewspapers brought an action for copyright infringement against the publisher of a Web site known as Free Republic. Free Republic was devoted to news reporting and to discussing current events. The general editorial philosophy of the site was critical of “mainstream” reporting, which the Free Republic site posited is biased and incomplete. Among the content posted on the site were verbatim copies of news articles, some of which had first appeared in the plaintiffs’ newspapers and on their own Web sites. Free Republic contended that it needed to print the stories verbatim so that the site’s editors and visitors could provide commentary and criticism of the stories. After the newspapers filed suit, claiming copyright infringement, Free Republic responded that it’s copying constituted a fair use of the material under the Copyright Act. The district court found that the fair-use defense did not apply. In coming to this conclusion, the district court gave careful consideration to the first fair-use element, the purpose and character of the defendants’ use. The court’s inquiry under this factor was two-fold. First, it focused on whether the use was “transformative” — that is, the degree to which the new use created a different expression, meaning or message from the original use. Second, it inquired into the commercial nature of the new use. COMMENTARY ON SITE DID NOT EXCUSE THE COPYING The court found that the posting of commentary and criticism regarding the copied articles by the editors and users of the site was not sufficient for the fair-use defense. Although one reason for posting the articles on the Web site was to generate commentary, discussion and criticism among site users, the court concluded that the effect of posting verbatim copies of the articles on Free Republic ultimately served the same purpose as their original publication — the communication of information to readers of the stories. Los Angeles Times, 2000 U.S. Dist. Lexis 5669, at *27-*29, *34-*36, *51-*52. The addition of some commentary after the articles was, in the court’s view, simply not sufficient to transform their core meaning or message, especially given that the whole of the articles was reprinted. The court also found, as a factual matter, that Free Republic was a commercial site and that the purpose behind the copying was to generate revenue, not a generally protected purpose such as scholarship or teaching. The court also gave great weight to the third fair-use factor, the amount and substantiality of the work that had been copied. “The fact that exact copies of plaintiffs’ articles are posted to the Free Republic site weighs strongly against the finding of fair use in this case.” Id.at *57. The court noted that, for the fair-use defense to stand, the copier may copy no more of the work than necessary to make the commentary or discussion accompanying it understandable. The court found that Free Republic had not made a convincing argument that it needed to post the articles in their entirety to make its commentary and criticism of value. Last, the court found that the copying had a harmful effect on the Post’sand Times’ability to sell their articles on their own Web sites. The court noted that the Free Republic site permitted visitors to read articles from the two newspapers that otherwise would be archived on the newspapers’ sites, and not available without a fee. The copying, the court concluded, therefore diminished the plaintiffs’ ability to sell and market their articles. Weighing all of the relevant factors, the court found that the fair-use doctrine was not applicable to the Free Republic’s copying. In the wake of its opinion on the fair-use defense, the district court on July 31 issued a “tentative order” granting the plaintiffs’ motion for summary judgment, which Free Republic and the other defendants — Jim Robinson, the operator of the site, and Electronic Orchard, a related site — did not oppose. Los Angeles Times v. Free Republic, No. CV 98-7840, slip op. (C.D. Cal. July 31, 2000). The defendants indicated, however, that they planned to file an appeal to the 9th U.S. Circuit Court of Appeals. Seetechlawjournal.com (Aug 7, 2000). The parties are still awaiting a final order regarding summary judgment. KELLY CAME TO OPPOSITE CONCLUSION FOR PHOTOS Kelly v. Arriba Soft Corp., 77 F. Supp.2d 1116 (C.D. Cal. 1999), announced several months before the Los Angeles Timesdecision, offers a different conclusion regarding the applicability of the fair-use defense in the context of Internet copying. In Kelly, the defendant operated a Web site that catalogued and indexed a vast array of photographs. The defendant, Arriba Soft Corp., which by the time of the suit was known as Ditto.com, used Web crawler software to ferret out photographic images on sites around the Web and transmit those images to Ditto in thumbnail form. Ditto employees would then screen and rank the retrieved photographs. Ditto maintained the retrieved photographs on its site only in thumbnail form; users could, by clicking on the thumbnailed photograph, hyperlink to the original Web sites to view the full-size image. The plaintiff, an author and photographer who specialized in producing photographs of the environs of the California gold rush of the late 1840s, operated two Web sites featuring his work. In January 1999, Ditto retrieved and indexed 35 of the plaintiff’s photographs in thumbnail form. Although Ditto removed the images from its database after being notified of the plaintiff’s objections, the photographer filed an action for copyright infringement. Ditto asserted the fair-use defense. Turning to the first fair-use factor, the court found that although the site’s purpose was clearly commercial, this purpose was mitigated because the 35 images downloaded by the defendant were a very small proportion of the thousands of images available through the defendant’s site. “While the use here was commercial, it was also of a somewhat more incidental and less exploitative nature than more traditional types of ‘commercial use.’ ” Id.at 1119. The court also concluded that Ditto’s use was significantly different from that of the original author, and therefore was transformative. The photographs as used by the plaintiff were for artistic and illustrative purposes, the court reasoned, while the thumbnail index provided by the defendant Web site was not aesthetic, but functional. The index’s “purpose [was] not to be artistic, but to be comprehensive.” Id. Looking to the third factor, the quantum of the work copied, the court found that, despite the fact that the images in question had been copied in their entirety, the reduction and compression of the images to thumbnail form rendered them of little use to anyone, except to obtain a general idea of what the full-size work looked like. Further, the court noted that it would be impractical to thumbnail only a portion of the photograph; for the image to be of any use in the index, the entire work would need to be copied. Last, the court found that Ditto’s use posed virtually no danger to the potential market for the plaintiff’s original photographs. Weighing all the factors of the fair-use defense, the district court found that the application of the defense was appropriate, and it granted summary judgment in favor of the defendant on the issue of copyright infringement. LESSONS TO BE LEARNED FROM THE TWO DECISIONS Although they do not address every aspect of the application of the fair-use defense with regard to Internet copying, Kellyand Los Angeles Timesdo provide some valuable insights into the type and nature of use of another’s work that would qualify for fair-use protection. In particular, in using the work of another on a Web site, site owners should take great care in deciding how much of another’s work to appropriate. The wholesale copying of content appears to raise a heavy presumption against the application of the defense. However, although the Kelly defendant had copied the entire work, it was so altered in size and proportion that it was rendered useless except as an indexing tool. In contrast, the verbatim reprinting of the news articles by Free Republic, even with added editorial content, weighed very heavily against fair use. The effect of a commercial motivation on the part of the purported infringer is more difficult to discern. While there was little evidence that Free Republic profited by its use of the plaintiffs’ articles — and in fact, the court acknowledged that the primary purpose of posting the articles was to stimulate discussion — the court found a commercial purpose behind the site because it was a for-profit entity. Conversely, the court in Kellygave little weight to the defendant’s profit motive, finding that although the site was avowedly in business to make money, the copied works constituted a de minimis part of its business. The lesson would seem to be that a commercial purpose, while it may well weigh against the application of fair use, is by no means fatal. The failure to profit directly from the infringing behavior likewise is not determinative. It is safe to say, however, that a sponsor of a site that is in any way a profit-driven enterprise runs a grave risk in copying and using copyrighted material. In neither decision did the accused infringer appear to be motivated by profiting directly from the author’s work or passing the author’s work off as its own. Nevertheless, this lack of bad motive did not appear to help either defendant’s cause. A pure heart, therefore, appears to be of little benefit to the accused infringer — it is the amount of copying, the context of its presentation, and the effects of that copying on the author that appear to be the cornerstones of the courts analyses. John E. Graf is a shareholder in the technology group at Pittsburgh’s Tucker Arensberg. He also serves as an adjunct professor at the Carnegie Mellon University Graduate School of Industrial Administration.

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