Alexa and copyright

[Web Publishers Virtual Library]

At 02:47 PM 3/26/98 -0800, Greg MacGowan wrote:

>If I may clarify your statement a bit, market effect is only one of the
>four factors to be considered under the "Fair Use" section (sec. 107) of
>the copyright act.

That's why I mentioned two more of the tests.  The fourth, for those who
desire completeness, is the nature of the work.

>... the fact that
>Alexa is making a profit from these works suggests that they do have market
>value, the fact they are usually given away notwithstanding. For example,
>if I take a photograph of a public sculpture, and then sell that
>photograph, I have infringed the copyright on that work.

No, you've got this wrong.  Alexa is not selling the works.  More to the
point, the fact that an infringer generates revenue (regardless of whether
or not it is profitable) from the copied work is not related to the
question of infringement.  The sale of infringing works affects actual and
punitive damages and can cause the infringement to be treated as a
criminal, in addition to civil, offense.  In fact, courts may find that
giving away infringing copies does more harm to the market value of the
work than selling them.  For example, imagine if you publish a work that
you sell for $10.  I unlawfully copy it and give it away for free on the
Internet.  Joe unlawfully copies it and sells it for $100 on the Internet.
Who has done more harm to your work's market value? Me, clearly, by
undercutting your price.  The punitive or statutory damages against me
could be much larger than against Joe, all other things being equal, while
actual damages would be quite difficult to calculate.  In Joe's case,
actual damages would probably just be the revenue he derived from his
sales, presumably a much lower amount, if your work is popular.

>But notice is not required for copyright protection. The onus is on the
>copier, not the author.

Sorry if I sound niggling, but...  Although you are quite right that notice
is not required for copyright (in most nations), that is not germane.
There is no question that some, if not the majority, of the works archived
by Alexa are works in which others have copyright.  The issue is whether or
not the archive infringes the copyright, not whether or not the copyright
exists.  A shareware license is a way for the copyright holder to *grant*
specific rights, allowing copies under conditions described in the license,
which presumably would not be permitted without the shareware license,
regardless of notice.  Such licenses have been upheld in case law, which is
why I suggested that this could be a fairly strong way to protect your
works if you don't want them archived.  The primary practical effect of
notice is to make it much easier to collective punitive damage. For works
distributed at no charge via the Internet, actual damages tend to be very
hard to prove, so notice becomes more important.  The Act also permits
statutory damages, when actual damages are unproven, as when they are
difficult or impossible to prove.  But statutory damages require copyright
registration.

As for endorsing their innovations in retrieval, I wasn't suggesting that
it justifies any unlawful archiving, just that it would be sad if the
archiving ended up being an obstacle.  As you point out, the two are
separable.

Nick