Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
Sharing Media on Social Networks: Infringement by Linking?

Sharing Media on Social Networks: Infringement by Linking?

Ratings: (0)|Views: 196 |Likes:
Published by jeanvidalpr

More info:

Published by: jeanvidalpr on Jun 02, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF or read online from Scribd
See more
See less

06/02/2012

pdf

 
S
HARING
M
EDIA ON
S
OCIAL
N
ETWORKS
:
 
I
NFRINGEMENTBY 
L
INKING
?
J
EAN
G.
 
V
IDAL
F
ONT
*
 I. Introduction ................................................................................................................................. 255II. Rights and Remedies ............................................................................................................... 257A. Exclusive Rights in Copyright .......................................................................................... 2571. Reproduction ..................................................................................................................... 2572. The Right to Distribute ................................................................................................... 2593. The Display and Perform Right................................................................................... 260B. Remedies ................................................................................................................................. 2611. Vicarious Liability ............................................................................................................ 2622. Contributory Infringement ........................................................................................... 2623. Infringement by Linking ................................................................................................ 265III. Perfect 10 and In-Frame Links .......................................................................................... 267A. The Case at the District Court ......................................................................................... 267B. Court of Appeals ................................................................................................................... 269IV. Facebook, In-Frame Linking, and User Inducement: Secondary Liability? ...... 271A. Background on Facebook and the “Share” Feature ................................................ 2711. Facebook: What is it? ...................................................................................................... 2712. Shared Content: How Can It Be Seen and Controlled? ....................................... 272V. Linking Content: When Sharing Becomes Infringing and What Can BeDone ............................................................................................................................................... 274A. Secondary Liability by Linking ....................................................................................... 274B. Compulsory Licensing: Solution? ................................................................................... 276
I.
 
I
NTRODUCTION
 
Social networking sites such as Facebook, MySpace, and Twitter havebecome so popular that they are now used as verb tenses in the same wayGoogle is used to describe an online search.
1
Facebook, for one, claims over901 million monthly active users.
2
One of the most popular features that Facebook has is the “share” feature, which allows users to “post” web content 
*
Attorney at Cancio, Nadal, Rivera & Díaz P.S.C. L.L.M. in Intellectual Property from theGeorge Washington University Law School (2009). J.D., Magna Cum Laude, from theInteramerican University of Puerto Rico School of Law (2007).
1
As in “I
 facebooked 
you but I couldn’t find you,” “Did you
twitter 
about it?”, etc.
2
F
ACEBOOK
, http://newsroom.fb.com/content/default.aspx?NewsAreaId=22 (last updatedMar. 2012).
 
256 U.P.R. Business Law Journal Vol. 3 
on their profiles.
3
By posting web content on their profiles, the user’s“friends” (or people whom the user authorizes to see his/her profile) can seethe web content that the user posted. Also, they can be invited to access it.Facebook boasts that over 30 billion pieces of content are shared everymonth.
4
This content includes, but is not limited to, Internet links, videos,web pages, photos, and any other content that a user can find on the Internet.To take a single act as the basis for the question posed here, and to serve alsoas an illustrative example; a user can go to YouTube, select a video, which theuser knows (or should know) that is infringing of the artist’s rights, and“shares” it on his
5
profile.
6
In a simple sequence of acts that can take less thanten seconds, the user has now made the link available to possibly hundreds(or even thousands) of his or her “friends.”
7
Assuming now that the content being shared is infringing, is the user who “shares” it guilty of contributoryinfringement?This paper will analyze a situation in which millions of users findthemselves doing each day: sharing web content on their social networkingprofiles. Part II of this paper will discuss the exclusive rights that theCopyright Act affords authors and the remedies those authors have to protect their rights, including but not limited to the two prevailing theories of secondary infringement, namely (1) contributory infringement and (2)vicarious infringement, as well as a more recent development known asinfringement by inducement. Part III will discuss the
Perfect 10 v. Google
8
 
decision by the Ninth Circuit and its relevance to the situation before us,since said case deals with “in-frame linking,” a feature which is crucial to theFacebook “share” feature. Part IV will analyze the “sharing” feature in light of the doctrines discussed and determine if sharing content on a profile is akin
3
This article will not discuss the “video” feature found on Facebook. The “video” featureallows users to upload (onto the Facebook servers) their own videos, thereby embeddingthem onto their profiles. This feature is different than the “sharing” feature in regards to thepossible liability the user might incur since, if the video were to be infringing, the user wouldbe liable for direct infringement. This paper focuses on the possible contributoryinfringement liability that the user might incur when he “shares” preexisting content that isuploaded/hosted by an unrelated third party.
4
F
ACEBOOK
, http://www.facebook.com/applications/Posted_Items/2309869772#/press/info.php?statistics (last updated Dec. 2011).
5
Throughout the article I will refer to the user as a “he” since a gender neutral term resultsin confusing language given the many references I make to an individual user’s actions.
6
YouTube is a user-generated video portal that is owned by Google, Inc. Users can uploadtheir own videos onto YouTube and they are available for anyone to see.
7
Facebook has since lifted the limit it used to impose on the maximum number of “friends” auser could have. It was previously set to 5,000 users but has since been lifted.
See
 Michael Arrington,
Facebook To Lift 5,000 Friends Limit 
, T
ECH
C
RUNCH
 
(Friday, May 9th, 2008)http://techcrunch.com/2008/05/09/facebook-to-lift-5000-friends-limit/ (last accessed onApril 14
th
, 2012).
8
Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006).
 
No. 2 Sharing Media On Social Networks:Infringement By Linking?257 
to distributing or making available, and if the user’s actions fall under one of the secondary liability doctrines developed by the courts. Part V willconclude that, in some cases, when a user shares content that is visiblyinfringing to a large number of “friends,” he could be liable under thedoctrine of secondary liability.
II.
 
R
IGHTS AND
R
EMEDIES
A.
 
Exclusive Rights in Copyright
Congress, pursuant to Article I Section 8 of the Constitution, affordscopyright owners a set of exclusive rights to exploit in regards to theirworks.
9
The Copyright Act of 1976
10
(hereinafter “the Act”) lists those sixexclusive rights and the scope of their extent.
11
The Act gives the owner of acopyright the right to: (1) reproduce copies; (2) prepare derivative works;(3) distribute copies; (4) publicly perform; (5) display the work; and (6) theright to the digital public performance of the underlying sound recording.
12
 The mentioned rights are the key for this analysis given that infringement can only be found when any of the said rights are violated and secondaryliability can only be determined if direct infringement is found. This articlewill be limited to discussing only those rights that are primarily (andpossibly) affected by the “sharing” feature found in Facebook.
1.
 
Reproduction
Section 106(1) of the Copyright Act affords the owner of the work theexclusive right to reproduce the copyrighted work in copies or phonorecords.Copies and phonorecords, as used in the Act, consist of material objects inwhich the work is fixed and it is only the reproduction of those materialobjects that is included in the reproduction right.
13
The copy in questionmust be one that can be perceived, reproduced or otherwise communicatedfor a period of more than a transitory duration.
14
Furthermore, it is not required to distribute or sell the copy in order to violate the exclusive right.The mere unauthorized (and presumably not protected under the fair usedoctrine) reproduction of the work is enough ground for infringement of thereproduction right.
15
 
9
U.S.
 
C
ONST
. art. I, § 8.
10
Copyright Act of 1976, 17 U.S.C. §§ 101-810.
11
17 U.S.C. § 106 (2009).
12
 
 Id.
 
13
N
IMMER
,
 
N
IMMER ON
C
OPYRIGHT
8-31, (2010).
14
17 U.S.C. § 101 (2009); N
IMMER
,
 
 supra
note 13 at 8-32.
15
N
IMMER
,
 
 supra
note 13 at 
 
8-35.

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->