Thursday, March 08, 2007

A Right of Access?

Section 106 is the exclusive source of economic rights (Section 106A being the source for visual artists' rights). If the right isn't there, it doesn't exist. (Just like if an exemption isn't found in Sections 107-122, it doesn't exist). The question of a "making available" right has been played out mostly as an asepct of the distribution right. A recent opinion in the Eastern District of California, Therapeutic Research Faculty v. NBTY, 81 USPQ2d `723 (E.D. Cal. Jan. 25, 2007), raises the question of a "right of access" that is no where to be found in the statute.

The dispute in the case is not particularly complicated: it turned on whether a pass-code protected license to access a database had been materially breached (leading to infringement). Defendants bought a restricted (and therefore cheaper) license; plaintiff alleged defendants gave out the pass-code to a number of individuals well beyond that authorized by the license terms. Plaintiff's complaint alleges that defendants "willfully and without permission infringed copyrights by engaging in the systematic, regular, and repeated authorized access to" its work.

Defendant brought an FRCP 12(b)(6) motion, arguing that infringement via unauthorized access "is not the type of conduct subject to protection by the copyright laws - the allegation simply has nothing to do with Defendants copying Plaintiff's work." I agree. The court though, noted that plaintiff also alleged, factually, that one of Defendants' employees "pasted the text from the [Plaintiff's Work] into an email and forwarded it to three employees... ." The court concluded:

"Plaintiff's claim of 'unauthorized access,' including allegations regarding pasting text from the copyrighted work into an email, sending of emails to unauthorized users and improperly accessing the [work] for purposes of of preparing FDA notifications, sufficiently alleges a violation of Plaintiff's exclusive rights to display, reproduce and distribute.... "


Anonymous said...

Steptoe & Johnson have made available the January 25, 2007 Order by Judge Garland E. Burrell, Jr., denying defendant's motion to dismiss in Therapeutic Research Faculty v NBTY (E.D.Cal.).

Anonymous said...

Interesting that there is a performance right and not a right to grant access in your view. Another digital world dis-connect in copyright law? Is the copy made on the receiving computer in order to be able to visualize the content in the database enough for 106?

Anonymous said...

Dear Mr. Patry:

Sorry to use your blog for what should, arguably, be an email, but because it poses something of an interesting general question relating to copyright, I thought I'd stick it on here and see if you run with it.

I was tooling around on Google Books today, and found a link to "Revisiting Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem: Hearing Before the Subcommittee on Administrative Oversight (Hardcover)", where Google doesn't allow access to the entire work, ostensibly on copyright grounds.

Of course, 17 U.S.C. Section 105 provides that "Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."

Question--is Google holding back access to federal works on some other copyright theory?

And any idea if Google's going to offer a case law search any time soon? It would seem to be a natural move, given the scope of the book project . . .


John Kelly

William Patry said...

John, I will look into your example, and if you send me your email adress I will get back to you. (Mine is A free online case law search would indeed be helpful.

Anonymous said...

The work cited is available in other places on line. Isn't the issue that one can restrict access however one wants for a public domain work in one's possession?

Mainly, you can't assert any rights or damages against someone else.