Oct 24 2009

Posting as Implied License

 

Merely posting a work online does not relinquish all rights. As in other environments, merely placing property in public does not release property rights. The Internet context, however, may indicate that some actions with respect to the work are implicitly permitted. 

 

The proper answer to what is permitted with reference to a work posted by its author in any case depends in part on what harm the third party conduct causes for the copyright owner and on the circumstances of the posting. A copyright owner that posts a work but says – “don’t make permanent copies” and “don’t send it to others” has a right to do so.

This is a circumstance that in law that juxtaposes the copyright owner’s property interests and supposed social interests. In this case, the relevant social interest lies in reasonable expectations in the media. But the copyright interest should not be sacrificed to accommodate competing commercial systems in which another desires to exploit the person’s copyright without permission. Simply put, placing a work into a digital environment may be a reason in law for implying limited permission (license) to use that work, but only in narrow, non-commercial ways.

            Consider an author who places her copyrighted poem online on the first page of a site that requires neither password, nor express permission to view that page. A user who comes across the site, views the poem (thus making a brief copy of it) and then leaves. This user did not infringe the copyright. Where and how the work was placed implies permission to do what the user did. Does the posting imply permission to make a permanent copy of the poem in the user’s computer – no. Does it imply a license to make and distribute multiple copies to third parties – no.   Does it imply the right to commercially exploit the work – no.

            Implied licenses in law arise only in narrow circumstances and, then, only within narrow limitations. When created, they are typically subject to being revoked at will. Having posted works online does not preclude the copyright owner from rescinding that permission, in which case, subsequent use is infringing.

            Especially online, there is often a close connection between an implied license analysis and an analysis grounded in the express terms of an online license. See Raymond T. Nimmer & Jeff Dodd, Modern Licensing Law ch. 10 (2009).  Implied licenses (permissions) cannot supersede express terms. If I say one thing, a court should not permit you to act as if I meant a different thing.

            The policy tension here entails a conflict between rights owners who desire to retain control of their works, while still enjoying the benefits of online systems, and those who desire an Internet environment in which information is free, interrupted only in clearly stated rights-based limitations. Inevitably, law and practice will reach some balance between these. But some courts push too far favoring an environment in which property rights are not effectively maintained.

            The court in Parker v. Yahoo!, Inc., 88 USPQ2d 1779 (ED Pa. 2008) approached this point in considering the copyright implications of the ordinary practice by search engines in making and displaying cached copies of online pages or works. Parker argued that, in the absence of an express license, this was infringement, but the court held that there was an “implied license”. The source of this implied license apparently was in the mere act of placing copyrighted material online and not taking technological or other steps to prevent the search engines from making the copies. The court’s explanation:

Parker acknowledges in his complaint that the defendants honor “electronic protocols” that would prevent the search engines from displaying a “cached” copy of his works … He also acknowledges that the defendants remove offending content upon request. … Parker contends that he has provided constructive notice to the defendants that he has not granted a license because he registered his works and included a copyright notice on his website. The Court is persuaded that Parker's complaint conclusively establishes the affirmative defense of implied license. At the very least, [it] suggests that Parker knew that as a result of his failure to abide by the search engines' procedures, the search engines would display a copy of his works. From Parker's silence and lack of earlier objection, the defendants could properly infer that Parker knew of and encouraged the search engines' activity, and, as did the defendants in Field, they could reasonably interpret Parker's conduct to be a grant of a license for that use.

Flip this into an affirmative statement and you will see the problem. This ruling requires that a copyright owner affirmatively give notice or use technological controls to prevent copying or lose the right to preclude at least this type of copying. But the source of the obligation to take affirmative steps lies in the court’s view that search engines are a structural part of the Internet and that rights owner’s must modify their conduct to accommodate the commercially profitable business that runs the search engines. That is wrong.

It is a tradition in U.S. contract law that mere silence does not generally constitute acceptance. So also in copyright law. But silence and inaction here was found to establish a quasi-contractual license. Parker inverts the meaning of property rights. It reduces the need for the search engines to negotiate permission from rights owners, but at the cost of control that otherwise would be vested in the property rights owner.

            This should not be the law, nor is it likely to be. In any event, not all copies can be treated as being within the scope of an arguable, implied license, since this license must have some limits to it. Defining those limits should place close attention on protecting the interests of the copyright owners.

Written By:Curtis Carmack On October 26, 2009 12:40 PM

Mr. Nimmer,

I believe what the search engines are doing is very much like what libraries do when they keep archival copies of newspapers in the public interest. It's hard to see how this is different and how Parker was harmed by the keeping of a cached copy. That said, I agree with you that this will end up being settled soon, though I disagree on the expected outcome. The suggestion that search engines need to negotiate permission from rights owners is an absurd proposition, as I believe many would agree after a rudimentary analysis of how such a regime could/should be put into place. When you publish on the internet, you certainly are not releasing all your rights, but neither are you in a position to dictate the terms of fair use. If you want that kind of control, you have to avoid putting your work into the public sphere or avail yourself of the tools at hand (which, in point of fact, offer you more control than you would ever have over physical media -- just try reclaiming every copy of a work handed out at a conference, for example).

Curt Carmack

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