Defenses to Copyright Infringement

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act is a 1998 amendment to the Copyright Act. Section 512 of the act gives search engine providers; inter alia, latitude in copying material that might otherwise be considered unauthorized copying.  Specifically, the act provides that search engine providers may refer or link “users to a site that contains infringing material- so long as the search-engine provider removes or blocks access to the material upon the notification of the infringement.” Therefore the Digital Millennium Copyright Act creates a safe harbor for search engine providers.  To receive the protection granted in the Digital Millennium Copyright Act the search engines must:

• Lack knowledge of the infringing activity

• Fail to receive a financial benefit from the infringing activity

• Provide notification of its policies to its subscribers

• Have an agent to manage copyright complaints

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Fair Use Doctrine

 The Fair Use Doctrine is a section of the Copyright Act that allows copyrighted works to be used without obtaining permission from the copywriter.  However, to determine whether the use is protected by the Fair Use Doctrine, the user must pass a four part test.

First, the user must determine its purpose and character for using the copyrighted work.  Acceptable uses include, but not limited to criticism, comment, news reporting, teaching, scholarship, or research. On the other hand, a commercial use is presumptively unfair. If the user operates for the purpose of profiting from exploiting the copyrighted material without paying for the material, such use will not be protected, and therefore subject to infringement.  Thus, mere commercial use is not sufficient to prohibit a party from using the fair use defense.  If the use is commercial, but the use was less exploitative of copyrighted works than one normally sees in commercial use there is no infringement.

Second, you have to consider the nature of the copyright.  Determine whether the copyright is a picture, file, computer program, etc.  Generally, factual works have greater fair use rights than do creative works because the nature of the work is more recognizable.

Third, determine the amount and substantiality of the portion used in relation to the copyrighted work as a whole.  In essence, you want to determine the ratio of amount of copyrighted work taken divided by the total amount of copyrighted work.  So long as the amount of copyrighted work is minimal in comparison to the total amount of the copyrighted act, there is no infringement.

Fourth, the effect of the use upon the potential market for or value of the copyrighted work is considered.  Here the court will consider whether the use undermines the creators market for the copyrighted work. 

The first factor has been the determining issue for deciding whether the use of the copyrighted material is infringement or fair use.  In, Kelly v. Arriba Soft Corp, the court held that the display of thumbnail images on the results page of a search engine was fair use.  The court held that although the defendant’s use was commercial in nature, the use was less exploitative and therefore did not use the original images in the same manner that the plaintiff intended to use the original images.  However, the issue regarding whether the display of the full images is infringement has not been decided.

One issue that remains to be answered is even if the creators can prove infringement, what are their damages?  Are the damages minimal?  Does the benefit of providing litigation outweigh the cost of litigation?

REFERENCES:

• Intellectual Property for CS Students: Copyrights – Infringement, at http://www.cs.duke.edu/courses/cps182s/fall02/cscopyright/Copyrights/Copyright-Infringement.htm (last visited Apr. 11, 2005).

• Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir., 2003).

• 17 USCS § 501.

• Digital Millennium Copyright Act, at http://www.copyright.gov/legislation/dmca.pdf.

• DMCA Safe Harbor Provisions at http://www.chillingeffects.org/dmca512/.

• The UCLA Online Institute for Cyberspace Law and Policy, The Digital Millennium Copyright Act, at http://www.gseis.ucla.edu/iclp/dmca1.htm (Feb. 8, 2001).