Richard Posner

“ The only harm that is relevant to the decision to grant a preliminary injunction is irreparable harm, since if it is reparable by an award of damages at the end of trial there is no need for preliminary relief. ”

“ But WIREdata doesn't want the Market Drive compilation. It isn't in the business of making tax assessments, which is the business for which Market Drive is designed. It only wants the raw data, the data the assessors inputted into Market Drive. Once it gets those data it will sort them in accordance with its own needs, which have to do with providing the information about properties that is useful to real estate brokers as opposed to taxing authorities.
But how are the data to be extracted from the database without infringing the copyright? ”

“ The employee must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs. Even if this prima facie showing is made, the employer has an opportunity to prove that upon more careful consideration the costs are excessive in relation either to the benefits of the accommodation or to the employer's financial survival or health. In a classic negligence case, the idiosyncrasies of the particular employer are irrelevant. Having above-average costs, or being in a precarious financial situation, is not a defense to negligence. ”

“ But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. ”

“ To simplify exposition, we refer to the appellant as "Aimster" and to the appellees (the plaintiffs) as the recording industry.
Teenagers and young adults who have access to the Internet like to swap computer files containing popular music. If the music is copyrighted, such swapping, which involves making and transmitting a digital copy of the music, infringes copyright. The swappers, who are ignorant or more commonly disdainful of copyright and in any event discount the likelihood of being sued or prosecuted for copyright infringement, are the direct infringers. ”

“ Wisconsin's housing division was not required by the Americans with Disabilities Act to allow Vande Zande to work at home; even more clearly it was not required to install a computer in her home so that she could avoid using up 16.5 hours of sick leave. It is conjectural that she will ever need those 16.5 hours; the expected cost of the loss must, therefore, surely be slight. An accommodation that allows a disabled worker to work at home, at full pay, subject only to a slight loss of sick leave that may never be needed, hence never missed, is, we hold, reasonable as a matter of law. ”

“ Authors don’t consult the records of the Copyright Office to see whether someone has asserted copyright in their works; and anyway McFarlane’s registrations no more revealed an intent to claim copyright in Gaiman’s contributions, as distinct from McFarlane’s own contributions as compiler and illustrator, than the copyright notices did. The significance of registration is that it is a prerequisite to a suit to enforce a copyright. ”

“ But that should not be a big problem, because WIREdata can hire programmers to extract the data from the municipalities' computers at its own expense.
From the standpoint of copyright law all that matters is that the process of extracting the raw data from the database does not involve copying Market Drive, or creating, as AT mysteriously asserts, a derivative work; all that is sought is raw data, data created not by AT but by the assessors, data that are in the public domain. ”

“ To the Aimsters of this world, a single noninfringing use provides complete immunity from liability. Neither is correct.
To situate Aimster's service between these unacceptable poles, we need to say just a bit more about it. In explaining how to use the Aimster software, the tutorial gives as its only examples of file sharing the sharing of copyrighted music, including copyrighted music that the recording industry had notified Aimster was being infringed by Aimster's users. The tutorial is the invitation to infringement that the Supreme Court found was missing in Sony. ”

“ The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work. The difficult term is "reasonable." The plaintiff in our case, a paraplegic, argues in effect that the term just means apt or efficacious. An accommodation is reasonable, she believes, when it is tailored to the particular individual's disability. A ramp or lift is thus a reasonable accommodation for a person who like this plaintiff is confined to a wheelchair. ”

“ Whether a particular work is copyrightable is fact-specific, which argues against treating the question as one of law, but tugging the other way is the concern that property rights not be placed at the mercy of a jury. ”

“ Like other property rights, a copyright is enforceable against persons with whom the owner has no contractual relations; so a property owner can eject a trespasser even though the trespasser had not contractually bound himself to refrain from entering the property. That is why AT is suing WIREdata for copyright infringement rather than for breach of contract. ”

“ Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses. Aimster failed to make that showing too, by failing to present evidence that the provision of an encryption capability effective against the service provider itself added important value to the service or saved significant cost. ”

“ It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy.
McFarlane argues that even as dolled up by the penciler, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true ”

“ And if the employer, because it is a government agency and therefore is not under intense competitive pressure to minimize its labor costs or maximize the value of its output, or for some other reason, bends over backwards to accommodate a disabled worker--goes further than the law requires--by allowing the worker to work at home, it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation. ”

“ A music file-swapping service might increase the value of a recording by enabling it to be used as currency in the music-sharing community, since someone who only downloads and never uploads, thus acting as a pure free rider, will not be very popular. Users of Aimster's software might form select (as distinct from all-comers) "buddy" groups to exchange non-copyrighted information about popular music, or for that matter to exchange ideas and opinions about wholly unrelated matters as the buddies became friendlier. ”

“ A derivative work is a translation or other transformation of an original work and must itself contain minimum originality for the same evidentiary reason that we noted in discussing the requirement that a copyrighted work be original. ”

“ Most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home. ”

“ Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like. A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. ”

“ But one thinks of a contributory infringer as someone who benefits directly from the infringement that he encourages, and that does not seem an apt description of the dance hall, though it does benefit to the extent that competition will force the dance band to charge the dance hall a smaller fee for performing if the band doesn't pay copyright royalties and so has lower costs than it would otherwise have. ”

“ But an intermittent impairment that is a characteristic manifestation of an admitted disability is, we believe, a part of the underlying disability and hence a condition that the employer must reasonably accommodate. Often the disabling aspect of a disability is, precisely, an intermittent manifestation of the disability, rather than the underlying impairment. The AIDS virus progressively destroys the infected person's immune system. The consequence is a series of opportunistic diseases which (so far as relevant to the disabilities law) often prevent the individual from working. ”

“ Related to the fundamental idea-expression dichotomy that we’ve already mentioned, the doctrine teaches that “a copyright owner can’t prove infringement by pointing to features of his work that are found in the defendant’s work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.” ”

“ He did not escape liability by this maneuver; no more can Deep by using encryption software to prevent himself from learning what surely he strongly suspects to be the case: that the users of his service--maybe all the users of his service--are copyright infringers.
This is not to say that the provider of an encrypted instant-messaging service or encryption software is ipso factor a contributory infringer should his buyers use the service to infringe copyright, merely because encryption, like secrecy generally, facilitates unlawful transactions. ”

“ The more problematic case is that of an individual who has a vocationally relevant disability--an impairment such as blindness or paralysis that limits a major human capability, such as seeing or walking. In the common case in which such an impairment interferes with the individual's ability to perform up to the standards of the workplace, or increases the cost of employing him, hiring and firing decisions based on the impairment are not "discriminatory" in a sense closely analogous to employment discrimination on racial grounds. ”

“ The contents of a comic book are typically the joint work of four artists—the writer, the penciler who creates the art work (McFarlane) , the inker (also McFarlane, in the case of Spawn No. 9, but it would often be a different person from the penciler) who makes a black and white plate of the art work, and the colorist who colors it. The finished product is copyrightable, yet one can imagine cases in which none of the separate contributions of the four collaborating artists would be. ”

“ But firms that facilitate their infringement, even if they are not themselves infringers because they are not making copies of the music that is shared, may be liable to the copyright owners as contributory infringers. ”

“ We conclude that access to a particular sink, when access to an equivalent sink, conveniently located, is provided, is not a legal duty of an employer. The duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the disabled worker to work in reasonable comfort. ”

“ The creator of a compilation is entitled to copyright it as long as it’s a work “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” ”

“ Aimster's server searches the computers of those users of its software who are online and so are available to be searched for files they are willing to share, and if it finds the file that has been requested it instructs the computer in which it is housed to transmit the file to the recipient via the Internet for him to download into his computer. ”

“ The recording industry's harm should the preliminary injunction be dissolved would undoubtedly be irreparable. The industry's damages from Aimster's contributory infringement cannot be reliably estimated and Aimster would in any event be unlikely ever to have the resources to pay them. Aimster's irreparable harm from the grant of the injunction is, if anything, less, because of the injunction bond of $ 500,000 that the industry was required to post and that Aimster does not contend is inadequate. ”

“ The jury could have disbelieved his denial that he saw the “related characters” copyright notices in the paperback books. And the fact that he was content with compensation no greater than what he received from DC Comics for work made for hire allows an inference that the real deal between him and McFarlane was that McFarlane would own the copyrights but pay Gaiman as well as or better than DC Comics, which also owned the copyrights on Gaiman’s work, did. If better, then maybe paying him royalties on the statuettes was McFarlane’s method of treating Gaiman better than DC Comics did. ”

“ We may assume without having to decide that emotional as well as physical barriers to the integration of disabled persons into the workforce are relevant in determining the reasonableness of an accommodation. But we do not think an employer has a duty to expend even modest amounts of money to bring about an absolute identity in working conditions between disabled and nondisabled workers. ”

“ So he created an “old man, who starts talking to Spawn and then telling him all these sort of things about Spawn’s super powers that Spawn couldn’t have known. And when you first meet him [Cogliostro] in the alley you think he’s a drunken bum with the rest of them, and then we realize no, he’s not. He’s some kind of mysterious stranger who knows things.”
Gaiman further described Cogliostro in a draft of Spawn No. 9 as “a really old bum, a skinny, balding old man, with a grubby greyish-yellow beard, like a skinny santa claus. ”

“ All five of our examples of actually or arguably noninfringing uses of Aimster's service are possibilities, but as should be evident from our earlier discussion the question is how probable they are. It is not enough, as we have said, that a product or service be physically capable, as it were, of a noninfringing use. ”

“ Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic. (The Act is not limited to employment discrimination, but such discrimination, addressed by Subchapter I of the Act, is the only kind at issue in this case and we limit our discussion accordingly.) ”

“ The decisions that say, rightly in the generality of cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren’t thinking of the case in which it couldn’t stand alone because of the nature of the particular creative process that had produced it. ”

“ All communications back and forth are encrypted by the sender by means of encryption software furnished by Aimster as part of the software package downloadable at no charge from the Web site, and are decrypted by the recipient using the same Aimster-furnished software package. If the user does not designate a buddy or buddies, then all the users of the Aimster system become his buddies; that is, he can send or receive from any of them.
Users list on their computers the computer files they are willing to share. ”

“ McFarlane makes two arguments for why Gaiman does not have copyright in Medieval Spawn (the name that McFarlane settled on for Olden Days Spawn) or Cogliostro. The first is that all that Gaiman contributed was the idea for the characters, and ideas are not copyrightable, only expression is and the expression was due to McFarlane’s drawing of the characters. It is true that people who contribute merely nonexpressive elements to a work are not copyright owners. ”

“ When co-ownership is conceded and the only issue therefore is the contractual, or in the absence of contract the equitable, division of the profits from the copyrighted work, there is no issue of copyright law and the suit for an accounting of profits therefore arises under state rather than federal law. ”

“ Gaiman and McFarlane are both celebrated figures in the world of comic books, but they play different though overlapping roles. Gaiman just writes scripts; McFarlane writes scripts too, but he also illustrates and publishes the comic books. In 1992, shortly after forming his own publishing house, McFarlane began publishing a series of comic books entitled Spawn, which at first he wrote and illustrated himself. “Spawn,” more precisely “Hellspawn,” are officers in an army of the damned commanded by a devil named Malebolgia, who hopes one day to launch his army against Heaven. ”

“ In a brief scene, Cogliostro, drawn by McFarlane as an old man with a long grey beard who faintly resembles Moses—McFarlane had been dissatisfied with Gaiman’s verbal description, which made Cogliostro sound like a wino—explains to Simmons-Spawn some of the powers of Hellspawn of which Simmons is unaware. Cogliostro displays his mysterious wisdom by calling him “Simmons,” to the latter’s bafflement—how could Cogliostro have known? Angela then appears in her dominatrix costume, there is another duel, and she vanquishes Simmons (whose powers are in fact unimpressive) , but does not kill him. ”

“ Spawn rides up on a huge horse. He’s wearing a kind of Spawn suit and mask, although the actual costume under the cloak is reminiscent of a suit of armour.” McFarlane drew “Olden Days Spawn” as (in the words of his brief) “essentially Spawn, only he dressed him as a knight from the Middle Ages with a shield bearing the Spawn logo.” To make him credibly medieval, Gaiman in his script has Olden Days Spawn say to a damsel in apparent distress, “Good day, sweet maiden.” The “damsel” is none other than Angela, a “maiden” only in the sense of making her maiden appearance in Spawn No. 9. ”

“ The expressive work that is the comic-book character Count Nicholas Cogliostro was the joint work of Gaiman and McFarlane—their contributions strike us as quite equal—and both are entitled to ownership of the copyright.
Medieval Spawn may seem to present a closer case than Cogliostro so far as copyrightability is concerned, because he has no name in Spawn No. 9. In fact he has never been named—“Medieval Spawn” is a description, not a proper name. ”

“ There is also nothing in the demand letter that Gaiman’s lawyer wrote McFarlane to indicate that Gaiman believed McFarlane was denying Gaiman’s joint ownership of the copyrights on the three characters. The issue of copyright ownership is distinct from that of the copyright owner’s entitlement to royalties when, as in this case, he is not the publisher of the copyrighted work. The fact that the author owns the copyright doesn’t determine how he and the publisher will divide the income from the sale of copies of the work. ”