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September 01, 2006


Denise Howell

Thanks for the thoughtful response, Bob! I agree with you 100% that it's a mistake to think that copyright questions in the online world are likely to be correctly analyzed solely with reference to paper analogs -- or, in this case, the music, programming, and screenwriting examples you also raise. We're dealing with something that is unique from all of those things, but, unfortunately, the reality is when courts are called upon to resolve disputes about unique circumstances, they have to start from known, already litigated circumstances and hopefully make correct decisions about which principles apply in the current case and which do not.

Re your "so what?" question, I think there are a number of things that could make it easier for courts to resolve these disputes, and for potential litigants to predict their outcome. John Palfrey's idea regarding syndication-specific licenses would certainly help, at least a little (see http://blogs.law.harvard.edu/palfrey/2006/03/12#a1074). I think it would be a long road as far as education and implementation goes, but they would certainly help clarify things if used. I also think you and I have a difference of opinion as to the impact of copyright information included in a feed. You've said you think it's impossible to attribute meaning to such information, due to the lack of standards in language, format of inclusion, etc. I think, since as you point out the critical issue in the implied license question is intent, ANY exrpress evidence that the rightsholder intended a particular outcome (be it all rights reserved, noncommercial use, etc.) will be important to the inquiry and eventual outcome.

The other part of "so what?" is the value in attempting to refine the thinking around these issues, in hope of making the guesses more educated, and as potential reference material for litigants, advocates, and lawmakers down the road.

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