Computer Law 484
Professor Richard H. Stern
Bulletin Board
Copyright Semester

Last major update 10-14-05

Bulletin Board for Computer Law 484:
Copyright Law -- Spring 2008

Please check at least weekly for last-minute updates on class materials


Please think about the following things and be prepared to opine about them for the next several classes:

  • More on Smell-o-vision and the like, discussed in class Feb. 1 – see this article by Professor Tom Field on a Dutch case; a very recent French case addresses a scent composition, but I have it only in French. If someone wants to go to the trouble of making a translation into English, I'll post it.

  • Link to Jan. 19, 2006, district court decision ruling in favor of Google against claim that its search engine violates would-be copyright troll's property rights. Decision is a compendium of case-law on fair use and infringement in Internet context.

  • Link to Feb. 21, 2006, district court decision ruling against Google on claim by P10 that Google's thumbnails as to P10 are not like ArribaSoft's thumbnails of Kelly in the ArribaSoft case. Link to letter from Perfect 10 to Google complaining about Google's use of P10 images.

  • Link to amicus curiae brief of Professor Stern in Federal Circuit's Bilski case, filed on behalf of CASRIP.

  • For those of you thinking about your term papers, here's a recent district court decision on transformative use of term papers, but it is not a parody case or case about other derivative works. There are things wrong with much of what the court says, but not with the fair use analysis. Or is there? Would you object if Turnitin databased your term paper?

  • Chapter 6: Link to background material on In re Uriah's Wife Bathsheba. See this also. You may see an annoying pop-up window. Think about whether it would involve preparation of an unauthorized derivative work if the window were there by reason of the acts of someone other than bartleby.com. What would the Artic court say, under the hands-laying doctrine? The Annie Lee court?

  • Start reviewing the numerous linking and framing pages as we move up on that part of the course materials. You can't get up to speed on all of it at once, so don't wait until the last minute. Start doing it in installments now. Keep reading chapter 6, to its end. (But not past 6C.) Remember that pop-up blockers interfere with the demos.

  • There are links to the district court and CA9 ops. in Arriba Soft on the NavigMap page. Here are links to a petition for rehearing by Arriba and to an amicus curiae brief of the EFF. You will want to study the district court and Ninth Circuit opinions, as well as the petition and amicus curiae brief. Some of the issues raised by the Ninth Circuit's trail blazing foray into the public display right, in the context of linking and framing, are discussed at the end of the last LHOOQ page. (The LHOOQ pages discuss derivative works on the Internet.)

  • We will read and discuss the Arriba Soft materials after the end of chapter 6A (right after the Big Hairy Woman case). Then we will put the text material down, put the casebook aside, and use the Web site material on linking, framing, alert boxes, pop-up windows, and other related material (mousetrapping, LHOOQ). We'll proceed to chapter 6B later -- late March or early April.

  • Here are Les Kelly's comments from his Web page as to what he's mad about regarding image search engines:

    As a result of my review, independent of the decision by the Ninth Circuit Court of Appeals, of the major image search engines (Google, PicSearch, Alta Vista and Lycos (FAST), it appears that Google may be most at risk based on the decision by the Ninth Circuit Court of Appeals in the manner in which it displays images. Google offers a split screen wherein the 'scaled down' image, which in the case of smaller images may actually be full size, appears above the actual web page on which the image appears. Google does not, however, offer advertising within the split screen.

    PicSearch and Alta Vista offer split screens with the thumbnail displayed again at the top of the page with the web page below. PicSearch does not yet offer advertising at its website today. Alta Vista does not offer advertising with the second display of the thumbnail.

    Lycos has two displays of the thumbnail before arriving at the full page of the website. Advertising appears with each thumbnail display.

    As clearly demonstrated by Ossola [DC lawyer representing Kelly], Sigall and Krongold in the Kelly brief, Arriba Soft and Ditto.com clearly controlled how they chose to display thumbnail and full size images. So, too, this follows that it can be shown that each of the major search engines have made a conscientious decision of how to display images. The question, then, follows: Do the current displays by image search engines comply with the decision in Kelly v Arriba Soft? Why is a split screen necessary?

    It is important, too, to note that the Ninth Circuit Court of Appeals does not touch on the subject of robots.txt. This, despite the belief of many 'techies', is not a part of the copyright law. The argument of many, to include Dr. Henry Gladney, IBM-Almaden, is not supported by case law nor the statutes themselves.

  • Consider Kelly's position, as restated in the brief of his amicus, the American Society of Media Photographers, Inc., about how linking must be carried out to avoid copyright infringement:

    Far from putting “linking” generally at risk, the Panel’s decision holds that where search engines not only link to the copyright owner’s site, but also display full-size images from that site divorced from the context in which they were displayed by the copyright owner and presented in the context of the search engine’s own site, copyright infringement has been committed. Merely linking to the copyright owner’s site, which on this record Ditto never confined itself to, is not proscribed or subject to copyright risk by the Panel’s decision. ...

    [I]t was the actual display of the full-size images of Kelly’s work stripped from the original context that was not fair use. Merely linking to Kelly’s originating home page, on the other hand, without free-standing display of the full-size images, would not run afoul of the fair use limits established by the Panel. It is striking that nowhere in Ditto’s or amici’s briefs do they explain why linking could not be constructed in this fashion. ...

    These are the plain and unmistakable teachings of the Panel’s decision. How it might be applied to practices of other search engines is something best left to the evolution of case-by-case precedents, each of which will be attuned to the specific practices of the service at issue.

    What's the problem with -- "Merely linking to Kelly’s originating home page, on the other hand, without free-standing display of the full-size images, would not run afoul of the fair use limits established by the Panel"? That might work with finding an image that's on the home page or otherwise very easy to find. But what if you have to wade through buckets and buckets of irrelevant garbage to find what you are looking for? Anyway, what does § 106 say about preserving images in or, conversely, "divorced from the context in which they were displayed by the copyright owner"? Does any part of § 107 speak to this in any way?

  • Les Kelly, the plaintiff in Arriba, sent me a pdf file of the Rehearing Brief that Chuck Ossola prepared in that case, and I have now posted it so that you can read it.

  • Look at the updated Linking page, and compare the home pages of Professors Wary and Hapless once again. Based on Arriba considerations, Professors Warier and Wariest have contributed their insights about to link or not to link.

  • Sample the materials at the bottom of the Framing page, including the blue Java box and then Professor Nefarious' home page. To get best results with Prof. N's page, close your task bars or as many of them as you can do without, to get a bigger screen area. Once on the page, start at the top. Click on the top frame to give it the "focus." (You can then use your arrow keys instead of the scroll or slide bar, if you want.) Review what Prof. N has to say about how to activate his site (you need to click on the gray bars to activate commentary frames). Check out Prof. Rashi under the technical notes, to see some very old framing. To go from one frame to another, e.g. to activate scroll bars, you must click on the frame that you want to be active, so that it gets the "focus." You can expand the size of a frame by placing the cursor on its border and dragging.

  • Go back to the navigation map page and work your way down the page. Take your time on the demo of massive framing. FYI, different browsers get different popup messages on mouseover. (Watch out for your pop-up blockers – you need to disable them.)

Current General Information (not for class - just F.Y.I.)


Term Papers Linking Framing US Copyright Office Current 17 U.S.C.

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