Copyright and Fair Use

Yes, the creation and use of "thumbnails" -- smaller, lower resolution depictions of the original image -- as part of such a search engine may be a fair use.

The Ninth Circuit Court of Appeals held in Kelly v. Arriba Soft that displaying the copyrighted images of another as thumbnails on a search engine was a fair use because the thumbnails served a completely different purpose than the original images. Working through the four factor fair use analysis, the court emphasized that it was essential to determine if defendant's use was transformative in nature. It is more likely that a court will find fair use if the defendant's use of the image advances a purpose different than the copyright holder's, rather than merely superseding the object of the originals. For example, the Ninth Circuit found there to be a fair use since the displayed images were not for illustrative artistic purposes, but were rather used as part of an image search engine as a means to access other images and web sites. Even if defendant's website is operated for a commercial purpose, it may still be a fair use if the use of the image was "more incidental and less exploitative." The court in Kelly found that defendant's search engine did not directly profit from the use of plaintiff's images, and therefore that their use was not highly exploitative. In Kelly, the court also found that the use of the images would not hurt the plaintiff's market for the images.

Section 107.

The fair use doctrine, as currently interpreted by the courts, probably would not entitle you to do so. Even though news items are factual and facts themselves are not protected by copyright, an entire news article itself is expression protected by copyright.

A court would apply the four factor fair use analysis to determine whether such a use is fair. In Los Angeles Times v. Free Republic, the court found that such a use was minimally -- or not at all -- transformative, since the article ultimately served the same purpose as the original copyrighted work. The initial posting of the article was a verbatim copy of the original with no added commentary or criticism and therefore did not transform the work at all. Although it is often a fair use to copy excerpts of a copyrighted work for the purpose of criticism or commentary, the copying may not exceed the extent necessary to serve that purpose. In this case, the court found that only a summary and not a complete verbatim copy of the work was necessary for the purpose of commentary and criticism.

The court also found that although the website solicited donations and advertised the services of another website, the overall nature of the website was non-commercial and benefited the public by promoting discussion of the issues presented in the articles on the website. However, the court found that the nontransformative character of the copying outweighed the consideration of its minimally commercial nature.

Finally, and most importantly, the court found that posting entire news articles on the website had an adverse market effect on the copyright owners.

Title 17

Yes it is.

Fair use is a defense to a claim of copyright infringement. The language used by Congress to codify the fair use defense to copyright infringement (set forth in Title 17, Section 107) specifically lists criticism, comment, news reporting, teaching, scholarship, and research as examples of uses that might be protected under fair use. However, this list is non-exhaustive, and therefore a use not covered in one of the categories could nonetheless be successfully defended as a fair use. Conversely, not every use that falls within the listed categories will necessarily be found by a court to be fair. For example, not every use of another's work for research or educational purposes will be held to be a fair use.

In considering a fair use defense to a claim of infringement, a court will focus its inquiry on the specific facts of the individual case. Therefore, it is very difficult to predict with accuracy what a court will do until it engages in the inquiry. What we do know is that a court will use the four factors listed by Congress as a guide in its inquiry. The four factors listed are

1. the purpose and character of the use (the more transformative defendant's use, the more likely to be fair use, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair; further, the more commercial defendant's use, the less likely such use will be fair),
2. the nature of the copyrighted work (first, the more creative and less purely factual the copyrighted work, the stronger its protection; second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair),
3. the amount and substantiality of the portion defendant used (did defendant copy nearly all of, or the heart of, the copyrighted work? if so, such use is less likely to be fair) and
4. the effect of defendant's use on the potential market for the copyrighted work.
   

It is likely that a bona fide parody that does not usurp the market for plaintiff's work or unfairly free ride on plaintiff's work will be protected as a fair use. Courts have held that the fair use defense can protect a parody of a copyrighted work from an infringement claim. However, that does not necessarily mean that all parodies will be protected. In the case of a parody where the defendant raises a fair use defense, the courts will run through the four part fair use analysis just as they would with any other fair use test. [See What is the purpose of the fair use defense?

The recently-enacted "Technology, Education, and Copyright Harmonization Act" -- the TEACH Act -- amends Section 110 to exempt certain uses of copyrighted works in the context of distance education (beyond the context of face-to-face teaching). The TEACH Act sets forth in detail the terms and conditions on which nonprofit educational institutions may use copyrighted works in the context of distance education (such as via websites or other digital means) without permission. More information on the TEACH Act.

While it is difficult to predict what courts will do when faced with a fair use defense, the answer is probably no. In 1997 the Sixth Circuit Court of Appeals held that it was not fair use for Michigan Document Services, a commercial copyshop, to copy works of scholarship and sell them to students without the permission of the copyright hodlers.

The court ran through the four factor fair use analysis (17 USC Section 107), focusing on the effect that the copying would have on the potential market for the copyrighted works. The court found that the copying would have a significant impact on the potential market for the works and consequently found that the copying was not protected by the fair use defense.

No. Fair use provides a defense to a claim of copyright infringement, but (according to most courts, at least) does not provide the would-be copier with the affirmative right (or ability) to copy. That is, you cannot force a copyright holder to give you copies of a work or allow you to make copies of the work. Under current copyright law, it is perfectly lawful for a copyright holder to use technological barriers to prevent others from making copies of her/his work.

Yes. Under the current copyright laws, it is lawful to circumvent technological copyright protection systems in order to make a copy. Then, if the copyright holder sues you for making the copies, and your fair use defense is successful, you are in the clear. But here's the catch: It is UNLAWFUL for someone to traffic in technology that can be used to circumvent technological copyright protection systems. Therefore, unless you can circumvent the copyright holder's protection yourself, it is unlikely that you will be able to find the technology you need elsewhere. Note that it is also UNLAWFUL for you to circumvent access control technologies. See Chapter 12 of the Copyright Act, particularly Section 1201. For more information on the anticircumvention provisions, see the Lumen topic "Anticircumvention."

Inline linking allows an internet service to import an image from another website and then include it on the server's own website. The user is able to click on an image and then open a new window to display the full size image, within the server's website.

A thumbnail is a smaller, lower resolution copy of a larger image the enlargement of which would lead to a loss of clarity of the image.

Probably not. According to the court in UMG Recordings v. MP3.Com, an internet company may not store MP3 music files to facilitate their retransmission. Reproducing audio compact disks into MP3s does not transform the copyrighted work. An internet operator must do more than merely retransmit the original work in a different medium. The court in UMG also found that storing digital files in this way would have an adverse market effect on the record companies.

The courts that have considered this issue to date have held that this type of "peer to peer file sharing" violates the copyright owner's exclusive right to reproduce their copyrighted material and does not constitute a fair use.

The Ninth Circuit Court of Appeals applied the four factor fair use analysis to address this issue. First, the court found that the purpose and character of such a use was not transformative, since the work was merely retransmitted in a different medium. Also, such use was found to be commercial in nature and resulted in the exploitation of copyrighted works since it saved the users the expense of purchasing the authorized copies. The court also focussed on the fourth factor, the effect of the use on the market. The court concluded that the internet service harmed the market for the plaintiff's copyrighted material by reducing CD sales and by interfereing with the copyright holder's attempts to charge for the same internet downloads.

A&M Records v. Napster, 239 F.3d 1004; see also MGM v. Grokster

The courts that have considered this issue thus far have held that allowing users to download a full, free, and permanent copy of the copyrighted recording would be a commercial use that would adversly affect the copyright owners' market for their work. The Napster court observed that "even if sampling enhanced the audio CD sales of the recording, the benefit to the copyright owner is not a sufficient indiciation of fair use." Further, the court held, even if the sampling benefited the copyright owner's audio CD sales, the copyright owner still enjoyed the right to develop alternative markets, such as the digital download market, and not to have such market usurped from them.

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004

No. An internet service, such as Napster, that allows a user to copy music he already owns onto the service itself in order to access the music from another location, also allows millions of other individuals to access the music. Since this leads to the distribution of the copyrighted material to the general public, this type of space shifting would not be a fair use.

Probably not. It is not a fair use to stream such clips over the internet if the purpose is to promote the sale and rental of the videos. Such a use infringes on the copyright owner's exclusive rights to reproduce, publicly display and distribute their work, and to create derivative works.

A court will apply the four factor fair use analysis to the individual facts of such a case to determine whether the use was fair. Courts have found that streamlining movie trailers for the purpose of promoting sales or rentals serves a commercial purpose and is not transformative since the use is not different than the purpose for which it was originally created. However, if the video trailer adds criticism or commentary to the original work, it is more likely that the court will consider it to be a fair use. Courts have also found that even if the movie clip is short and therefore only uses a small portion of the original work, the aggregation of scenes may reflect the themes and tone of the film in a way that interferes with the plaintiff's ability to evoke the same expressive values in its own previews. With regard to the effect of the use on the market, a misleading arrangement of scenes or a low quality clip could lead to an adverse effect on the copyright owner's market. Also, such previews could detract from sales on the copyright owner's official website.

Video Pipeline, Inc. v. Buena Vista Home Entertainment, 192 F.Supp.2d 321

Maybe. The California District Court has found that such a use benefits the public despite its commercial nature because it promotes the distribution of copyrighted works. The court also found that the operator's purpose in using the work was different from that of the copyright owner's. With regard to the nature of the copyrighted work, the court found that since the use of the work was for the purpose of facilitating the posting of the articles, the nature of the works themselves was not an important factor in the inquiry.

Although substantial amounts of the copyrighted works were copied onto the BBS, the court found that no more was copied than was necessary to serve the website's purpose. Finally, the court found there was a qustion of fact as to whether the use affected the potential market for the work.

As of now, there is no official decision with regard to this issue. The Ninth Circuit Court of Appeals withdrew its previous decision in which it held that a search engine may not display the full size images without the copyright owner's permission because such a use infringed on the owner's exclusive right to publicly display his or her works. In its recently-issued opinion (July 2003), the court determined that this issue did not need to be addressed, and the issue was remanded back to the lower court.

The look and feel of a website comprises its design aspects. The "look" includes layout, colors, typefaces, etc. The "feel" includes the behavior of dynamic elements such as buttons, boxes, and menus.

Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis.

First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images.

Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considred a fair use than the reproduction of a highly creative one.

Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use.

Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market.

No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).

There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws.

The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts."

Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing an unauthorized use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws.

The fair use doctrine was originally a judge-made doctrine embodied in case law. See Folsom v. Marsh, 9 F.Cas. 342 (1841). Congress later codified it at Title 17 of the United States Code, Section 107.

The language used by Congress in Title 17, Section 107 specifically lists "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," but this is an explicitly non-exhaustive list of examples.

No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).

No. Fair use is a defense to a claim of infringement. Therefore, someone who wishes to make a use of the copyrighted work of another cannot force the copyright holder to turn over the work, even if the desired use would be considered fair by the courts. In such a case, the user must find a way to make the use, and then can invoke the fair use defense if she or he is sued for infringement by the copyright holder.

No. Fair use provides a defense to a claim of copyright infringement, but (according to most courts, at least) does not provide the would-be copier with the affirmative right (or ability) to copy. That is, you cannot force a copyright holder to give you copies of a work or allow you to make copies of the work. Under current copyright law, it is perfectly lawful for a copyright holder to use technological barriers to prevent others from making copies of her/his work.

Yes. Under the current copyright laws, it is lawful to circumvent technological copyright protection systems in order to make a copy. Then, if the copyright holder sues you for making the copies, and your fair use defense is successful, you are in the clear. But here's the catch: It is UNLAWFUL for someone to TRAFFIC IN technology that can be used to circumvent technological copyright protection systems. Therefore, unless you can circumvent the copyright holder's protection yourself, it is unlikely that you will be able to find the technology you need elsewhere. Note that it is also UNLAWFUL for you to circumvent ACCESS control technologies. See Chapter 12 of the Copyright Act, particularly section 1201. For more information on the anticircumvention provisions, see the Lumen topic "Anticircumvention."

It is likely that a bona fide parody, as opposed to satire, that does not usurp the market for plaintiff's work or unfairly free ride on plaintiff's work will be protected as a fair use. See Campbell v. Acuff-Rose Music, 510 US 569 (1994). Courts have held that the fair use defense can protect a parody of a copyrighted work from an infringement claim. However, that does not necessarily mean that all parodies will be protected. In the case of a parody where the defendant raises a fair use defense, the courts will run through the four part fair use analysis just as they would with any other fair use test. [See above for the four part test].

While it is problematic to try to predict what a court will decide in any fair use case, it is likely that in the case of a parody the court will focus on the fourth factor of the inquiry, which requires the court to ask what effect the parody has on the potential market for the copyrighted work. If the parody usurps the market for the copyrighted work, then there is an increased chance that the court will find that the use is not fair. If the parody dampens the market for the copyrighted work as a result of its implicit criticism of the work, such a negative effect on the market does not render such use unfair.

As mentioned above, it is hard to predict what a court will do when presented with a fair use defense. However, in this case the answer depends in part on your purposes in copying. If you intend to archive the copies, the answer is probably no, while if you intend to use the copies in classroom instruction (without charging for the copies), the use may be fair.

In 1994 the Second Circuit Court of Appeals held that it was not a fair use for research scientists at Texaco to photocopy articles from various scientific and technical journals. Texaco argued, on behalf of its scientists, that the use was for the purpose of research, and therefore was fair under Section 107. But the court was not convinced. In reaching its decision, the court in Texaco ran through the four factor fair use analysis (see generally, what types of uses does the fair use doctrine protect? and the introduction to this Lumen topic). The court found that three of the four factors weighed against Texaco, and focused much of its opinion on the fourth factor, deciding that Texaco's use would have a significant impact on the potential market for the journal articles. Thus, in order to make copies of the articles, the research scientists at Texaco had to either pay for them or get express permission from the publishers. See American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994).

Further, use of another's work for classroom instruction purposes may be protected under a separate provision of the Copyright Act. Section 110 of the Copyright Act contains exemptions that provide nonprofit educational institutions the limited right to use copyrighted materials in face-to-face classroom settings. This section provides: "Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction . . . ."

Furthermore, the recently enacted "Technology, Education, and Copyright Harmonization Act" -- the TEACH Act -- amends Section 110 to exempt certain uses of copyrighted works in the context of distance education (beyond the context of face-to-face teaching). The TEACH Act sets forth in detail the terms and conditions on which nonprofit educational institutions may use copyrighted works in the context of distance education (such as via websites or other digital means) without permission.

The fair use doctrine, as currently interpreted by the courts, probably would not entitle you to do so. Even though news items are factual and facts themselves are not protected by copyright, an entire news article itself is expression protected by copyright.

A court would apply the four factor fair use analysis to determine whether such a use is fair. In Los Angeles Times v. Free Republic, the court found that such a use was minimally -- or not at all -- transformative, since the article ultimately served the same purpose as the original copyrighted work. The initial posting of the article was a verbatim copy of the original with no added commentary or criticism and therefore did not transform the work at all. Although it is often a fair use to copy excerpts of a copyrighted work for the purpose of criticism or commentary, the copying may not exceed the extent necessary to serve that purpose. In this case, the court found that only a summary and not a complete verbatim copy of the work was necessary for the purpose of commentary and criticism.

The court also found that although the website solicited donations and advertised the services of another website, the overall nature of the website was non-commercial and benefited the public by promoting discussion of the issues presented in the articles on the website. However, the court found that the nontransformative character of the copying outweighed the consideration of its minimally commercial nature.

Finally, and most importantly, the court found that posting entire news articles on the website had an adverse market effect on the copyright owners.

See L.A. Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669 (C.D. Cal. 2000).

Probably. Short quotations will usually be fair use, not copyright infringement. The Copyright Act says that "fair use...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." So if you are commenting on or criticizing an item someone else has posted, a court would likely find that you have a fair use right to quote. The law favors "transformative" uses, as per fair use factor 1.

Probably. The creation and use of "thumbnails" -- smaller, lower resolution copies of an image the enlargement of which would lead to a loss of clarity of the image-- as part of such a search engine may be a fair use.

The Ninth Circuit Court of Appeals recently held in Kelly v. Arriba Soft that displaying the copyrighted images of another as thumbnails on a search engine was a fair use because the thumbnails served a completely different purpose than the original images. Working through the four factor fair use analysis, the court emphasized that it was essential to determine if defendant's use was transformative in nature. It is more likely that a court will find fair use if the defendant's use of the image advances a purpose different than the copyright holder's, rather than merely superseding the object of the originals. For example, the Ninth Circuit found there to be a fair use since the displayed images were not for illustrative artistic purposes, but were rather used as part of an image search engine as a means to access other images and web sites. Even if defendant's website is operated for a commercial purpose, it may still be a fair use if the use of the image was "more incidental and less exploitative." The court in Kelly found that defendant's search engine did not directly profit from the use of plaintiff's images, and therefore that their use was not highly exploitative. In Kelly, the court also found that the use of the images would not hurt the plaintiff's market for the images.

Kelly v. Arriba Soft Corporation, 336 F.3d 811(9th Cir. Cal. 2003).

However, if there is an actual market for thumbnails, this may be copyright infringement. The Central District of California recently granted an injunction preventing Google from displaying thumbnail size versions of Perfect 10

As of now, there is no official decision with regard to this issue. The Ninth Circuit Court of Appeals withdrew its previous decision in which it held that a search engine may not display the full size images in this way without the copyright owner's permission because such a use infringed on the owner's exclusive right to publicly display his or her works. In its recently issued opinion (July 2003), the court determined that this issue did not need to be addressed, and the issue was remanded back to the lower court.

Inline linking allows a website to import an image from another website and then include it on the website. The user is able to click on an image and then open a new window to display the full size image, within the original website.

Probably not. According to the court in UMG Recordings v. MP3.com, an internet company may not store MP3 music files to facilitate their retransmission. Reproducing audio compact discs in MP3 format does not transform the copyrighted work. An internet operator must do more than merely retransmit the original work in a different medium. The court in UMG also found that storing digital files in this way would have an adverse market effect on the record companies.

UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000).

No. The courts that have considered this issue to date have held that this type of "peer to peer file sharing" violates the copyright owner's exclusive right to reproduce their copyrighted material and does not constitute a fair use.

The Ninth Circuit Court of Appeals applied the four factor fair use analysis to address this issue. First, the court found that the purpose and character of such a use was not transformative, since the work was merely retransmitted in a different medium. Also, such use was found to be commercial in nature and resulted in the exploitation of copyrighted works since it saved the users the expense of purchasing the authorized copies. The court also focused on the fourth factor, the effect of the use on the market. The court concluded that the internet service harmed the market for the plaintiff's copyrighted material by reducing CD sales and by interfering with the copyright holder's attempts to charge for the same internet downloads.

A&M Records v. Napster, 239 F.3d 1004 (9th Cir. Cal. 2001); see also MGM v. Grokster, 125 S. Ct. 2764 (2005).

No. The courts that have considered this issue thus far have held that allowing users to download a full, free, and permanent copy of the copyrighted recording would be a commercial use that would adversely affect the copyright owners' market for their work. The Napster court observed that "even if sampling enhanced the audio CD sales of the recording, the benefit to the copyright owner is not a sufficient indication of fair use." Further, the court held, even if the sampling benefited the copyright owner's audio CD sales, the copyright owner still enjoyed the right to develop alternative markets, such as the digital download market, and not to have such market usurped from them.

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

Probably not. It is not a fair use to stream such clips over the internet if the purpose is to promote the sale and rental of the videos. Such a use infringes on the copyright owner's exclusive rights to reproduce, publicly display and distribute their work, and to create derivative works.

A court will apply the four factor fair use analysis to the individual facts of such a case to determine whether the use was fair. Courts have found that stream lining movie trailers for the purpose of promoting sales or rentals serves a commercial purpose and is not transformative since the use is not different than the purpose for which it was originally created. However, if the video trailer adds criticism or commentary to the original work, it is more likely that the court will consider it to be a fair use. Courts have also found that even if the movie clip is short and therefore only uses a small portion of the original work, the aggregation of scenes may reflect the themes and tone of the film in a way that interferes with the plaintiff's ability to evoke the same expressive values in its own previews. With regard to the effect of the use on the market, a misleading arrangement of scenes or a low quality clip could lead to an adverse effect on the copyright owner's market. Also, such previews could detract from sales on the copyright owner's official website.

Video Pipeline, Inc. v. Buena Vista Home Entertainment, 192 F.Supp.2d 321(D.N.J. 2002).

No. In Clean Flicks of Colorado, LLCv. Soderbergh, a U.S. District court held that a business that sold "family-freindly" copies of movies, copies made by buying originals and then editing the movies by deleting objectionable content was copyright infringement. The court held that despite defendants' arguments to the contrary, the edits were not fair use, violated the "creator’s rights to protect its creation in the form in which it was created," and the "right to control the content of the copyrighted work which is the essence of the law of copyright, " and caused "irreparable injury to the creative artistic expression in the copyrighted movies."

An individual may own copyrights to the code and graphical design of a website. In order for a website user interface to be considered copyrightable subject matter, it must be both fixed in a "tangible medium of expression" and original. The code creating the look and feel of a website is fixed on a file in the hard drive, so it is likely considered a "tangible medium of expression." To find a work is original, there must be some independent creation by the author, and some minimal degree of creativity. Just because an individual puts time and effort into a work does not necessarily make the work original. Although the level of creativity required is low, it may be difficult to find the originality required for copyright protection in simplistic websites that just arrange facts or information. If, however, the visual user interface component contains some graphics or a creative, visual presentation, it will likely be considered original.

Once it is determined that a website is copyrightable subject matter, a court will determine whether there is a substantial similarity between the expressions compared. To determine which elements are protectable and which are not, courts generally look at the level of structural abstraction. Aspects of the website that are considered merely functional or ideas are not protected, and must therefore be separated prior to comparison. Once the elements are separated, proving substantial similarity is not tremendously difficult. It can be proven with circumstantial evidence that the wrongdoer had access to the work to copy it, or with direct evidence of copying.

See Computer Associates v. Altai, 775 F. Supp. 544 (E.D.N.Y. 1991).

In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

• The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
• Identification of the material and its location before removal [512(g)(3)(B)]
• A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
• Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]