Monday, February 28, 2005

Firefox Adblock a Contributory Infringer? Firefox Adblock a Contributory Infringer?

Information Technology and the Law � Firefox Adblock a Contributory Infringer? is an interesting article arguing that the automatic removal of advertisements by Firefox's Adblock runs afoul of 17 USC § 106(2) - creation of a derivative work.

Everyone seems to have it backwards, including Judge Posner. A derivative work requires the ADDITION of original expression (though, sometimes this can be in the subtraction of original content).

An excellent example of this can be seen in the Ward Churchill debate going on right now. In particular, look at this article by Michelle Malkin on possible infringement by Churchill. Two different examples are shown. In both of these, Churchill seems to have reversed the original, and then removed some detail. Clearly, if accurate, derivative works.

The problem here is that the typical derivative works question is whether or not sufficient original expression has been added to the original work in order to qualify as a "derivative work". So, what you look for is precisely that - what original content is added, and if it would qualify for copyright protection upon its own merit. If it doesn't, then it is not a derivative work, but merely a reproduction.

Upon first reading the copyright statute (17 USC) that merely changing or modifying a work would qualify as a "derivative work". BUT, a closer reading belies this. Note that in 17 USC § 106(1), reproductions are "copies" not "works", but § 106(2) talks of "derivative works". Also, note in 17 USC § 101, that all the other "works" (i.e. "work made for hire", "work of the United States Government", "work of visual art") all require original expression. Thus, the term "work" is a term of art meaning some creation with sufficient original expression to stand alone for copyright protection.

In the case of Firefox's Adblock, presumably no original expression is being added by the mechanical removal of advertisements, thus no "work" is created, and thus the display of a web page without the advertisement is not a "derivative work", infringing under 17 USC § 106(2).

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