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EFF Amicus Curiae Briefin Kelly v. Arriba Soft (Feb. 27, 2002)No. 00-55521 Before Betty B. Fletcher, Thomas G. Nelson, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Thomas G. Nelson, decided February 6, 2002. UNITED STATES COURT OF APPEALS
Fred von Lohmann Ð CA #192657 Attorney for Amicus Curiae Table of Contents
Table of AuthoritiesCasesA&M Records, Inc. v. Napster Inc. 239 F.3d 1004 (9th Cir. 2001) Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc. 866 F.2d 278 (9th Cir. 1989) In re DoubleClick Inc. Privacy Litig. 154 F. Supp. 2d 497 (S.D.N.Y 2001) Kelly v. Arriba Soft Corp. 2002 WL 181351 (9th Cir. Feb. 6, 2002) National Football League v. Primetime 24 Joint Venture 211 F.3d 10 (2d Cir. 2000) Playboy Enters., Inc. v. Russ Hardenburgh, Inc. 982 F. Supp. 503 (N.D. Ohio 1997) Playboy Enters., Inc. v. Webbworld, Inc. 991 F. Supp. 543 (N.D. Texas 1997) Religious Technology Center v. Netcom On-Line Communication Services, Inc. 907 F. Supp. 1361 (N.D. Cal. 1995) Universal City Studios v. Reimerdes 111 F. Supp. 2d 294 (S.D.N.Y. 2000); aff'd, 273 F.3d 429 (2d Cir. 2001) Statutes17 U.S.C. § 101 17 U.S.C. § 106(5) Federal Rule of Appellate Procedure 29 I. Statement of Identity and Interest of Amicus CuriaeThe Electronic Frontier Foundation is a nonprofit, membership-supported civil liberties organization working to protect civil rights and free expression in the digital world. EFF's interest in this case arises because the ruling of the Panel puts copyright law and free expression on a collision course, by holding that a link from one Web site to another directly infringes a copyright owner's exclusive right of public display. EFF files the instant motion pursuant to Federal Rule of Appellate Procedure 29. II. IntroductionThe great strength of the Web as a communications medium stems from its pervasive use of "hyperlinking"--the ability to embed in one document pointers to others:
Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 340 (S.D.N.Y. 2000) (internal citations and quotations omitted; emphasis added); aff'd, 273 F.3d 429 (2d Cir. 2001).
The Panel, however, has announced an unprecedented rule that would impose
just this sort of strict liability for linking. According to the Panel's
opinion, the transmission by a Web site operator of a simple URL,
The Panel's error arises from the combination of a mistake of fact and
mistake of law. The Panel correctly recognizes that direct infringement of
the public display right requires "a transmission of a display of a work
to the public." See Kelly v. Arriba Soft Corp., 2002 WL 181351 (9th Cir.
Feb. 6, 2002), at *7 (hereafter, "Opinion"). The only thing "transmitted"
by Ditto in this case, however, was a URL, a bit of text that instructs a
viewer's Web browser software to fetch an image directly from appellant
Kelly's Web server. III. The Exclusive Right to Display PubliclyA copyright owner has the exclusive right to "display the copyrighted work publicly." 17 U.S.C. § 106(5). "To display a work," according to the Copyright Act, "means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process." 17 U.S.C. § 101. A copyright owner's rights, however, are implicated only when a copy of a work is displayed "publicly." The Copyright Act recognizes two ways in which a display can be public, only one of which is relevant to the instant case: "to display a work publicly means...to transmit or otherwise communicate a...display of the work...to the public, by means of any device or process, whether the members of the public capable of receiving the...display receive it in the same place or in separate places and at the same time or at different times." 17 U.S.C. § 101. This Court's precedents further establish that "to transmit or otherwise communicate" within the meaning of the statute requires the "sending out some sort of signal via a device or process to be received by the public at a place beyond the place from which it is sent." Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278, 282 (9th Cir. 1989). The Panel expressly relied on the "transmit...to the public" provision as the basis for its holding that Ditto directly infringed Kelly's public display rights. See Opinion at *7. The Panel goes astray by failing to recognize what is being transmitted and by whom. A proper understanding of the technology involved in Ditto's activities makes it clear that at all times it is Kelly who is transmitting his works to end-users, and thus Kelly who is publicly displaying his own images. Ditto's only transmission is a URL, an address for the location on Kelly's Web site where the image may be fetched by an interested viewer. IV. The Panel Misunderstood the Technology behind the Web.The Panel opinion found direct infringement liability because Ditto "imports" Kelly's images into a new window ("framing") or "Images Attributes" Web page ("in-line linking"). See Opinion at *8. The term "imports," however, fails adequately to describe the manner in which the underlying technology operates. In actuality, the Web operates as a global file-retrieval system:
See In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d at 501. A user employs a "browser," such as Internet Explorer, in order to send requests to these Web servers. Links provide a shortcut for sending such requests. For example, if a Jane Doe clicks a link to the EFF homepage, her browser will send a request to EFF's server asking, "send me the document you have stored at the address www.eff.org." This is identical to what would have occurred had she typed or pasted the URL "http://www.eff.org" into her browser. The EFF server would then respond by sending a set of instructions, which Jane's browser will use to assemble and ultimately display the EFF homepage. In responding to this initial request, however, the EFF server (like most Web servers) does not send all the elements of a Web page to the user at once. Instead, the initial response merely specifies the layout of the page, along with a few basic elements, and supplies additional URLs--more links--corresponding to the various remaining elements (e.g., images, additional text, banners). Some of these links result in requests for documents stored on EFF's servers, while others may send requests to other servers. Jane's browser responds to each of these URLs just as if she had clicked on a link for each of them--it sends requests to each of the servers specified. Jane's browser then assembles all the materials received and displays the EFF homepage. All of this is handled automatically by Jane's browser. Jane remains unaware of the rapid-fire exchange of messages between her browser and various servers. This sets the stage for an understanding of Ditto's challenged activities in the instant case. Had a Ditto user clicked on an Image Attributes page or followed a "Source" link seeking one of Kelly's images, a request would have been sent to Ditto's servers. In the case of the Image Attributes page, Ditto's servers would have responded by supplying certain information about Kelly's image, along with the URL on Kelly's server where the original image could be found. The user's browser would then have requested the image from Kelly's server and assembled the Image Attributes page by combining these elements into a single Web page for display. The Source link, in contrast, is made up of two URLs--one requesting the entire Kelly Web page, and another requesting only the image itself. Upon clicking on the link, the user's browser would have requested each from Kelly's server for display in two windows. There is nothing unusual about sending URLs that direct a user's browser to request a document from a third party server. In fact, this is precisely what linking is all about. For example, the practice of supplying some elements of a Web page from one server, while relying on third party servers to supply other elements (such as images and graphics) powers most "banner ads" on Web sites. The practice of transmitting a simple URL, thereby directing a browser to request a file from a different server, and finally resulting in the display of the file in a new window--what the Panel termed "framing"--is not only common, it is the essence of linking on the Web. For example, Kelly makes an image of his photograph "40 Mile Desert" available as part of a Web page that can be found at the following URL: <http://www.goldrush1849.com/thumbnails/carsonsink.html>. The image itself, however, has its own URL: <http://www.goldrush1849.com/images/carsonsink.jpg>. Anyone can provide a link that would cause a browser to request either file. In Ditto's case, had a user clicked on the Source link after locating "40 Mile Desert" through the search engine, the Ditto server would have provided both URLs, each of which would have been opened by the user's browser in a new window. The Panel opinion holds that Ditto's conduct infringed Kelly's public display rights by causing the "importation" of Kelly's images into different contexts. As the prior discussion makes clear, however, the activity that the Panel has condemned is technically indistinguishable from linking generally, at least with respect to the transmission aspect of the public display right. V. Absent a Transmission of the Work, Ditto cannot be Liable for Direct Infringement of the Public Display Right.
Case law also provides no support for the Panel's radical expansion of the
public display right. No court has ever held a defendant directly liable
for infringement under the "transmit...to the public" aspect of the public
display right where he did not transmit the work, but rather caused a
transmission by a third party. While such conduct might give rise to
contributory or vicarious liability in appropriate circumstances, In each of the cases cited by the Panel to support its unprecedented holding, the defendant had himself transmitted the infringing display. For example, in Playboy Enters., Inc. v. Webbworld, Inc., 991 F. Supp. 543 (N.D. Tex. 1997), the defendant operated a Web site that downloaded copyrighted images from newsgroups, stored them, then transmitted them on to those who visited the Web site. See id. at 550-51. Similarly, in Playboy Enters., Inc. v. Russ Hardenburgh, Inc., 982 F. Supp. 503 (N.D. Ohio 1997), the defendant operated an electronic bulletin board. Users of the bulletin board would upload copyrighted works to the defendant's computers, which would then re-transmit the works to other users. See id. at 505.
Both Webbworld and Hardenburgh stand for the well-established proposition
that a retransmitter can be held directly liable for violating a copyright
owner's public display or performance right. See generally National
Football League v. Primetime 24 Joint Venture, 211 F.3d 10, 12-13 (2d Cir.
2000). Neither of these cases, nor any others cited by the parties,
support the proposition that those who cause a third party to transmit a
display can be held directly liable for the resulting transmission. VI. ConclusionFor the reasons stated herein, amicus curiae Electronic Frontier Foundation respectfully requests rehearing of this matter, and/or rehearing en banc, as appropriate. Respectfully submitted,
_____________________________ Dated: February 27, 2002 Endnotes
1. "URL" is an acronym for "Uniform Resource Locator," the Internet
address that identifies the location of a file in the Internet's
infrastructure. See In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d
497, 501 (S.D.N.Y. 2001).
2. As the Panel itself recognized, Arriba did not itself reproduce or
transmit the copyrighted images. See Opinion at *8-9.
3. See, e.g., A&M Records, Inc. v. Napster Inc., 239 F.3d 1004 (9th Cir.
2001) (contributorily and vicariously likely where services caused third
parties to infringe reproduction and distribution rights). In this case,
however, secondary liability was neither pleaded nor raised by Kelly.
4. The Panel opinion may also raise difficult First Amendment questions.
See Universal v. Reimerdes, 273 F.3d at 456-57 (applying First Amendment
scrutiny to restrictions on linking).
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