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Corbis Sues Amazon for Copyright Infringement
Gedvondur writes "The story ran in the WSJ today, that the Gates-owned image company, Corbis, is suing Amazon.com for copyright violations (PDF link). Apparently the suit was without warning to Amazon. Amazon will use the DMCA to defend itself. Link goes to copy of the WSJ article on Corbis's site."
Here's a link to news.com. Give Google news a shot, the piece is being carried by just about everyone.
So while they have a case against the person selling the photos I don't think they have one against Amazon itself (unless it was made aware of the fact and failed to take action - which is not the case).
This case is akin to charging a newspaper with theft because someone advertised something that turned out to be stolen in the trading post section or pimping because of the classified section.
The only reason Amazon is the target is because it has more money.
The DMCA has to do with Amazon trying to be considered a service provider so that they can have immunity.
I think it is very relavent how that distinction is drawn personaly.
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
If Corbis didn't get the WSJ's permission, they would almost definitely be infringing. Section 107 is the general statutory fair use provision, your choice of statute is correct. But they copied the entire article -- big no-no for fair use -- and they're doing it for purposes arguably much more commercial than noncommercial (the fact that this article is in a very recent issue of the WSJ doesn't help in this regard, and of course neither does its appearance on Corbis's corporate website). Those two things together are probably deadly, at least with non-digital stuff. The seminal case I'm thinking of -- American Geophysical Union v. Texaco -- involved photocopying complete journal articles for distribution among the scientists at Texaco, and Texaco lost. Corbis's PDF wouldn't be much different.
This minimal bitrate fair use idea is interesting, though. I've never heard of this argument winning. Do you have any cites? At any rate, the quality of the PDF isn't very important. In the past, direct reproduction of copyrighted material wasn't very good by nature, but unauthorized copies were still infringing. It shouldn't really be different now, at least for texts. I can definitely think of fairuse arguments for minimal bitrate MP3s, but I'm not so sure they'd win (which is why I'd love to read an opinion that thought otherwise).
You are guilty of infringement when you, yourself, reproduce, distribute or make derivative works without consent, unless certain defenses apply (fair use, first sale, more money than the plaintiff to defend yourself, etc.).
You may also be guilty of infringement if you contribute to another person's infringement (think "aiding and abetting"), or if you have a master-agent relationship with the infringer. However, you are not responsible under these rules all the time. As a threshold matter, you are never responsible unless the primary individual is actually guilty of an infringement (that is, you can assert all of his defenses). Also, both for contribution and vicarious infringement, you generally have to have a guilty state of mind, often requiring, at least, imputed knowledge of the direct infringement. For contribution, there is also a number of other rules, such as the modern version of the Supreme Court's Sony "substantial noninfringing use" test, whereby you are off the hook if the technology is capable of a substantial noninfringing use, except in cases where the defendant's corporate name ends in "ster."
When the Church of Scientology sued Netcom for contributing to the infringements of its customers, Netcom prevailed, as I recall on summary judgment, by pointing out that it had no reason to know of the infringement, and thus could not be liable for contribution. This District Court opinion was later codified in the DMCA "internet provider" safe harbor rules. Note that whether or not the DMCA gives Amazon a defense, Amazon can always fall back on general rules of contribution, including Netcom.