Letter from an anonymous attorney

Date:         Sat, 03 Aug 1996 00:24:17 -0500
From:         (removed at sender's request)
Subject:      Legal Issue
To:           dwallach@CS.Princeton.EDU

Hello Dan. I'm an attorney in Minnesota who has been following with great personal interest the debate on cyberia-l regarding your Dilbert hack page. You indicated in a recent message you are interested in collecting a variety of viewpoints, so I will offer mine with the understanding that nothing herein is intended as legal advice.

The messages posted by experienced lawyers and others interested in web copyright issues suggests you have presented a 'cutting edge' issue of law where there is no clear cut answer. In such circumstances, the party with the greatest financial resources often 'wins' because the alleged infringer rarely has the time and money to fight it out in court, even though the public would greatly benefit from a formal record establishing the lessons learned as a result of a fully fought legal battle.

Here is my analysis of the potential legal exposure you may be looking at. The web is a brand new technology. There are few legal precedents that will serve you as a guide. The issue is copyright infringement. The most commonly asserted basis for copyright infringement, namely the exclusive right to reproduce a work in copies, is *not* implicated here. The claim against you appears to involve assertions by the publisher that you have allegedly infringed the owner's exclusive right to display a copyrighted work publicly, and/or that you should be held liable for 'contributory' infringement, on the theory that you provide others with an unauthorized means for reproducing a protected work where there is no other legitimate use (as in the Sony-Betamax case).

Since the works (i.e., the individual comic strips) are freely available on the web, can they be protected at all? Looking at it from the owner's perspective, the web technology appears to incorporate a powerful means for infringing copyrights which technology is, for the most part, governed by an "implied license" granted generally to end-users by the owner of the copyrighted works. The owner grants this implied license because it understands how the web works and expressly *intends* that any individual user with access to the Internet be given the ability to point to the home page and download, temporarily store and display via a web browser the owner's copyrighted materials.

The problem is that an implied license is an unwritten and unspoken "permission" that can probably be over-ridden by an express notice that the license is withdrawn or limited in some way. The cease-and-desist letters addressed to you, and possibly in any restrictive 'web-wrap' licenses that may be displayed on the owner's home page, may effectively destroy and revoke any implied permission you might otherwise have enjoyed based on the inherent characteristics of the web.

If the 'implied' license is effectively revoked, you can win only if your hack-page avoids all of the owner's exclusive copyright rights, or if your page infringes but is subject to the equitable doctrine of fair use (which is often difficult to assess in advance without litigation). While the idea that inline image links are, like a list of publicly known street addresses, merely "facts" not subject to protection, I think the efforts of the web page owner to discourage such in-line links, and your counter-efforts to overcome those efforts, may raise an issue of contributory infringement in the associated works. It's my impression that courts often are influenced by the *appearance* of an unfair misappropriation of someone else's property when they begin to apply traditional legal analyses of infringement, the defense of 'fair use' and the newly developing legal principles regarding contributory infringement. Therefore, as a practical matter, you face a risk that a court initially will view your hack-page with some disfavor even before the legal analysis begins.

The bottom line from my perspective is that unless you find a legal champion willing to help you develop this area of the law in the courts, you face sufficient obstacles and uncertainties to warrant caving in to the publisher's demands.

To reiterate, the above comments are offered sort of "off the top of my head" and are only meant to stimulate your thoughts as you consider, together with your legal counsel, whether or not you should continue to display the Dilbert hack page in contravention to the wishes of the publisher. By the way, you are hereby granted permission to reproduce or distribute all or part of this message if you wish, with or without attribution .

As a final note, I can only wonder what Scott Adams might think of all of this! I spent 25 years inside a large corporation before launching my own law practice in 1994, and have been a Dilbert fan for a long long time.

Best wishes,

Dan Wallach, CS Department, Rice University
Last modified: Sun Aug 04 18:27:27 1996