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Tech Law Journal |
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date listed as December 18 Todd E. Zenger (#5238) IN THE UNITED STATES DISTRICT COURT
Plaintiff, Intellectual Reserve, Inc., submits these points and authorities further establishing acts of contributory infringement by defendants, thereby confirming the need to continue the Court’s November 10, 1999 Order. I. WEB BROWSERS ARE MAKING UNAUTHORIZED COPIES Already presented to the Court are actual examples of persons who with the assistance of the defendants have made or who have attempted to make copies of the Church Handbook of Instructions. That is, unauthorized copies have been made. In addition, persons who, using their computer, access the Handbook at Internet locations identified by the defendants also make unauthorized copies because when the Handbook is accessed at a website, an electronic copy is downloaded from the website into the memory of the computer. Downloading materials from a website is reproduction/copying of the material. Sega Enter. v. Maphia, 948 F. Supp. 923, 931 (N.D. CA. 1996). Indeed, the display on the screen used to review the copy is generated from the copy in the computer memory, not from the originating website. E.g., Ohio v. Perry, 41 U.S.P.Q.2d 1989, 1995 (Ohio Ct. App. 1997). In other words, persons who access and view an infringing work make a copy on and view the copy from that person’s computer. In this case, the copying is without authorization from IRI. The copy made into the computer stays in the memory of the computer until deleted. II. PROVIDING PERSONS ALL INFORMATION NECESSARY TO OBTAIN AN ELECTRONIC COPY INDUCES, CAUSES OR MATERIALLY CONTRIBUTES TO THE CREATION OF UNAUTHORIZED ELECTRONIC COPIES Defendants proactively and substantively provide all necessary information to make unauthorized copies to persons who, prior to their communications with the defendants, had no such information. This is not a case of persons coming to the defendants saying, "I have a copy, how could I make another copy?" This is a case in which the defendants tell persons (1) about the existence of known unauthorized copies of which the persons were not already aware; (2) the precise location of the unauthorized copies, which location the persons did not previously know; and (3) that the information is readily available and how to get it. This is a case about the defendants’ giving people who don’t have the information, all the necessary information to infringe, and, as stated above, there are documented instances in which people have made such copies. In other words, defendants provide all necessary location tools to effect infringement by persons who otherwise were unable to infringe but for the location tools provided by defendants. Potential liability for copyright infringement was contemplated by Congress when addressing e-commerce in the Digital Millennium Copyright Act. Such liability is contemplated when "a directory, index, reference, pointer, or hypertext link" is used for the purpose of "referring or linking users to an online location containing infringing material or infringing activity." 17 U.S.C. § 512 (d). The House Committee Report No. 105-55 Part 2 expressly warns against referring to online locations "such as a list of recommended sites" and this "without regard to whether copyright infringement is technically deemed to have occurred at that location or at the location where the material is received." Ex. 1 hereto, page 6 of 16. Indeed, "[t]he intended objective of this standard is to exclude from the safe harbor sophisticated ‘pirate’ directories–which refer Internet users to other selected Internet sites where pirate software, books, movies, and music can be downloaded or transmitted." Id. at page 7 of 16. This illustrates that in the case of electronically reproducing documents already in electronic form, the only material information needed to infringe is knowledge as to where the information is and then accessing the site. Prior to the November 10, 1999 Temporary Restraining Order, both types of material information which induce, cause or materially contribute to the infringement by another. Defendants have used a directory to Tribune articles, indices, and references which refer users to online locations containing infringing material. This is not a case of having relationships to effect public performances where there are many events and steps leading up to a performance. This is not a case of manufacturing and selling physical copies of records, tapes or videos. This is a case of being able to locate and access/reproduce unauthorized electronic images with a few easy and costless keystrokes with the help of the defendants.[1] The defendants provide all necessary information not previously had by the user, thereby effecting infringement by having someone else press the keys. This constitutes contributory infringement.
Direct infringement occurs when unauthorized copies are made, even into the memory of computers. The defendants have not only done this themselves but educate others as to every necessary step to do so by providing knowledge of the existence of unauthorized copies, the precise location of known infringing copies and all necessary information to access the known infringing copies. Thereby, defendants are facilitating the virtually instantaneous and costless ‘click-on’ reproduction which occurs each time a user downloads an unauthorized electronic copy. In the context of this case, it clearly establishes inducing, causing, or materially contributing to infringement. Therefore, the Court’s November 10, 1999 Temporary Restraining Order was and remains proper. DATED this 18th day of December, 1999. KIRTON & McCONKIE
By: ______________________ Todd E. Zenger, Esq. CERTIFICATE OF SERVICE I hereby certify that on this 18th day of December, 1999, I caused a true and correct copy of the foregoing PLAINTIFF’S POINTS AND AUTHORITIES REGARDING CONTRIBUTORY INFRINGEMENT BY DEFENDANTS RE: DEFENDANTS’ REQUEST TO MODIFY / VACATE THE INJUNCTIVE RELIEF to be both mailed through United States mail, postage prepaid, and transmitted via fax, to the following: Brian M. Barnard Footnotes [1] "Information location tools are essential to the operation of the Internet; without them, users would not be able to find the information they need." Id. at page 8 of 16.
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