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1 Indian J. Intell. Prop. L. 1 (2008)

handle is hein.journals/ijipl1 and id is 1 raw text is: A NEW BONANZA FOR PLAINTIFF'S LAWYERS ? MULTI-MILLION DOLLAR COPYRIGHT LIABILITY IN THE U.S.A. Joseph M. Beck* § Introduction Most American business executives, if asked, would disapprove of copyright infringement; some might add that they have a policy warning employees not to infringe. But a policy may not be enough according to a recent decision affirming almost twenty million dollars in damages against a company whose employees did what a lot of employees in the U.S. do everyday; they faxed, downloaded and forwarded on-line issues of a copyrighted newsletter to which their employer subscribed. § The Problem Contrary to the common assumption that - if it's on the Internet, it's public domain, in fact much material on the worldwide web is copyrighted.1 While some copyright owners freely grant permission to download or forward materials, many licenses severely restrict any such use. Permission to download may not include permission to photocopy; authorization to use within a corporation's headquarters may not include permission to forward to branch offices, much less to customers. Another common assumption-that a company can rely on the fair use doctrine when copying and distributing periodicals for which it has a subscription also is questionable. References in the U.S. Copyright Act2 to possible fair use for teaching, scholarship, comment and research will not reliably provide a safe harbor for commercial users even if the use is characterized as for education or research. § The Potential Legal Exposure A. Liability Copyright protection under U.S. law vests, automatically in the author of an original work (the originality standard is quite low) fixed in a tangible medium of expression (e.g., print, software, video, etc.). Infringement can be proved simply by demonstrating ownership (a prima facie case is made by offering in evidence a Certificate of Registration of the claim of copyright) and copying (an unauthorized electronic transmission of a protected work from one computer's memory to another's generally creates an infringing copy). Moreover, as discussed below, defenses such as estoppel, implied license and fair use may not shield an employer, even an employer that instructs its employees never to infringe copyrights. In other words, liability for copyright infringement is often easy to prove. Partner, Kilpatrick Stockton, LLP, USA. As a condition of U.S. membership in the Berne Convention, since March 1, 1989, it has been unnecessary to include a copyright notice on a work; and even items that once were in the public domain may be protected if they are part of an original compilation or have been revised. 2 17 U.S.C. 107.

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