Spend some time visiting the links at Don't Link to US . Do you see any themes to what the corporations discussed here are trying to do? Are their goals reasonable? Is there a better way to achieve them? Visit ABA, Web-Linking Agreements: Contracting Strategies and Model Provisions. Should lawyers buy this book? Visit Stefan Bechtold, The End of the Internet (2001) Visit Chilling Effects Clearinghouse
If there is a technological solution to the deep linking 'problem' should the law stay out of it? Or should it protect the less technologically savvy? The lazy? Your e-commerce client has been deep linked by a competitor. What do you advise? Your represent the Citizens Against Corporate Antagonists, who routinely deep link to highlight what they consider corporate abuse. They've just gotten a cease and desist letter. What do you advise? If your client asked to draft some standard from language for its linking policy what would you write?
The Copyright Act defines "copies" as:Does this change your answer? Is it correctly decided?material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.The Copyright Act then explains:
17 U.S.C. § 101.A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.The district court's grant of summary judgment on MAI's claims of copyright infringement reflects its conclusion that a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law.
17 U.S.C. § 101.
Peak concedes that in maintaining its customer's computers, it uses MAI operating software "to the extent that the repair and maintenance process necessarily involves turning on the computer to make sure it is functional and thereby running the operating system." It is also uncontroverted that when the computer is turned on the operating system is loaded into the computer's RAM. ...Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer, MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." ...
The law also supports the conclusion that Peak's loading of copyrighted software into RAM creates a "copy" of that software in violation of the Copyright Act. ....
It is not disputed that Peak has several MAI computers with MAI operating software "up and running" at its headquarters. It is also not disputed that Peak only has a license to use MAI software to operate one system. As discussed above, we find that the loading of MAI's operating software into RAM, which occurs when an MAI system is turned on, constitutes a copyright violation.
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