Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.
United States District Court, D. Utah, Central Division
Dec. 6, 1999
Plaintiff Intellectual Reserve (IR) seeks a preliminary injunction against defendant Utah Lighthouse Ministry (ULM). ULM is a religious organization with a Web site partially devoted to criticizing various parts of the plaintiff's religion. In a prior case, IR won an injunction against the defendant, preventing ULM from posting the copyrighted "Church Handbook of Instructions" of the plaintiff. At issue in this case is ULM's practice of providing links on its Web site to other Web sites that contain the copyrighted material of the plaintiff. The plaintiff has not granted permission to copy to ULM nor any of the sites ULM links to.
The court found that ULM's linking to the unauthorized material was likely to be found "contributory infringement" of IR's copyright. Therefore, it granted a preliminary injunction preventing ULM from linking to the sites in question.
In order to find ULM guilty of contributory infringement, the plaintiff must show that (1) someone has infringed the copyright of the plaintiff, (2) the defendant has induced, caused or materially contributed to that infringement. There are two situations in which ULM might be found to have contributed to infringement:(I) if ULM contributed to the infringement caused by "hosting" of the unauthorized copyrighted "handbook", and (II) if ULM contributed to any infringement caused by Web surfers who used ULM's links to access the unauthorized copyright "handbook."
The court found that posting copyrighted material on the Web against the copyright owner's permission does constitute infringement. However, in this case, ULM has not facilitated those who have posted the infringing material. Therefore, it is not responsible for infringement by those who post IR's materials on the Web.
The court did find, however, that ULM was contributing the the infringement of IR's copyright perpetrated by persons viewing unauthorized materials on their computer, via the Web. It was necessary, therefore, for the court to find that those who accessed the "handbook" on the Web are themselves copyright infringers. The court found that when such users access the "handbook" on the Web, a copy of that material is made in the user's computer (specifically, in the RAM of the computer).
The court found that ULM was "actively encourag[ing]" this infringement by (1) posting a message stating "Church Handbook of Instructions is back online!" and listing three links to copies of the book, (2) commenting on the effect on a prior law suit of ULM Web site users' downloading of the handbook, (3) posting of messages assisting those having difficulty downloading the handbook, and (4) posting of a message that suggested distributing the handbook to the press.
Noting that contributory infringement is about "knowledge and participation," the court ruled that the above facts combined with an assumption of irreparable injury made the granting of a preliminary injunction against the defendant appropriate.
To read the entire opinion, click here.
Kelly v. Arriba Soft Corp.
United States District Court, C.D. California
Dec. 15, 1999
Defendant Arriba soft operates a Web site named "Ditto.com." Ditto.com a "visual search engine" of graphic images on the Internet. Ditto.com stores millions of "thumbnail" images, small images intended to provide a preview of a larger image, which it categorizes and indexes. Users can then search the Ditto.com Web site for images which match specified criteria, after which the user will be presented with the a Web page or pages containing thumbnails of images that match the criteria. If the user clicks on a thumbnail, a new browser window will be opened with the full size image in it, as well as information about the image's "attributes," including size, name, and the address of the image. A user could visit the page from where the image originated by clicking on the address.
Plaintiff Leslie A. Kelley operates a Web site that contains various images on two Web sites: one promoting his photographs, and one related to the advertisement of corporate retreats to California's cold rush country. About 35 of Kelley's images were indexed by Arriba's "crawler" software which scours the Web for images to put in its search engine database.
The court found that Arriba's activity certainly constituted copying of the plaintiff's copyrighted images. However, it found that such copying was not infringement because it is justified under the "Fair Use Doctrine," that is part of US Copyright law.
The Fair Use Doctrine allows certain use of copyrighted material under special circumstances. Four factors weigh for or against fair use: (1) purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. (Click here to see the complete "fair use" doctrine)
The court found the first factor to weigh in favor of fair use. It found the nature of Arriba's use to be "significantly transformative" in that it sought to catalog and improve access to images on the Internet. This purpose was significantly different than the plaintiff's purpose in using the photographs (i.e., to illustrate his own photography). That the defendant's use of the images was commercial was mitigated because their use was "more incidental and less exploitative [in] nature than more traditional types of 'commercial use.'"
The court found the second factor to weigh against fair use. Photographs are at the "core of intended copyright protection."
The court found the third factor to weigh "slightly" against fair use. Ditto.com uses thumbnail images that are no larger than necessary to serve the purpose of allowing users to identify them. The use of the "attributes page" was less related to the purpose of the search engine, however.
Lastly, the court found the fourth factor to weigh in favor of fair use. Thought the court noted that it would be possible for plaintiff to suffer harm to the market of his photographs, he had presented no evidence of such harm.
In conclusion, the court found that Arriba's use of the the plaintiff's images was fair use. Since the first factor is "the most important in this case," and weighed heavily in favor of the defendant, a fair use finding was appropriate.
To read the entire opinion, click here.
Niton Corporation v. Radiation Monitoring Devices, Inc.
United States District Court, D. Massachusetts
Nov. 18, 1998
Judge Keeton began this case by noting that "This is a classic illustration of a new kind of litigation for which nothing in past experience comes even close to preparing trial judges and the advocates appearing before them."
Plaintiff Niton and defendant Radiation Monitoring Devices (RMD) are both makers of devices for detecting lead in paint. Niton's webmaster happened upon RMD's Web site one day, and discovered that RMD's Web site meta tags contained the following: (1) a description that was exactly the same as Niton's Web site meta tag description, (2) keywords including descriptions of products that Niton sells but that RMD does not. The meta description of five RMD pages was "The Home Page of Niton Corporation, makers of the finest lead, radon, and multi-element detectors."
RMD has no official or other relationship with Niton. Plaintiff also alleged that RMD's Web site contained multiple false statements about Niton and it's products.
In this case, the plaintiff's request for a preliminary injunction was granted. The court found that the plaintiff was likely to succeed in its claims that RMD's Web site was likely to lead consumers to believe that: (a) employees of RMD are "makers of the finest radon detectors," (b) RMD is also known as Niton Corporation, (c) RMD makes for Niton products marketed by Niton, and (d) RMD Web sites are Niton web sites.
To read the entire opinion, click here.