Alexa and copyright

[Greg MacGowan]

At 03:25 PM 3/26/98 -0800, Nick Arnett wrote:
>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.

Yes, but these are the tests under a Fair Use analysis, and I hope that
Alexa is not claiming fair use, which is "for purposes SUCH AS [emphasis
mine] criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research" (section 107). While
this language does not exclude commercial activity, I do think (IMO)
commercial activity falls outside the scope and intent of ss. 107. In any
case, if Alexa were to use fair use as their defense, I think it would be
extremely risky. They would probably have a better chance of demonstrating
that the works were not copyrightable or had thin copyrights (e.g., factual
compilations). Also, in your original message, you said:

>The primary test of copyright 
>infringement is the effect that the copy has the market value of the work.

and this is the comment that I was most interested in correcting. The
primary test of copyright infringement, as I understand it, is the copying
of a work of original expression. Market effect only comes into play in the
fair use analysis (which I hope we can agree is going down the wrong path)
and assessing damages, but is not a consideration for whether an
infringement actually took place. (I hope I am not beating a dead horse
here, but I think too many people get caught up in the monetary aspect of
copyright.)

>>... 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. 

I hope I am not being argumentative, but if Alexa is not selling the works
(more accurately, the intellectual property contained in the copied works),
how can they generate revenue from the copied works? Please clarify. More
importantly, the fact that the copier is a for-profit enterprise engaged in
copying, regardless of whether the copying is directly related to revenue,
is relevant. See American Geophysical Union v. Texaco, 37 F.3d 881 (2d Cir.
1994).

>  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. 

Interesting idea. Do you have any case law to support it? But both you and
Joe have infringed the copyright, right?

I feel like I am stepping dangerously close to giving legal advice, so one
more time:

Disclaimer: I am not a lawyer. The above is not legal advice and should not
be contrued as authoritative.  All opinions expressed are solely my own and
are not necessarily those of my employer.

--------------------------------------------------------------
Greg S. MacGowan
Information Technologies Coordinator (and Webmaster)
Brandeis University Libraries
Brandeis University
Waltham, MA  02254-9110

phone: (781) 736-4690 (W)
fax:    (781) 736-4719 
email: macgowan at Brandeis.edu


"You will know when you are calm ... at peace ... passive." -- Yoda