Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1994), or the result of 'reverse engineering' which often is not protected, Computer Associates International, Inc. v. Altai, Inc., 23 U.S.P.Q.2d 124 (2d Cir. 1992). Expert testimony on this issue might be determinative.
Under current copyright law, Sally's failure to give third parties notice of copyright is not fatal; however, its absence means that a defendant can claim, for damages purposes, that he is an innocent infringer. It would make a difference for purposes of damages if Sally had provided notice of her copyright.
If defendant(s) made 'fair use' of Sally's work, they would not under sec. 107 of the Copyright Act be copyright infringers. According to the Continuing Education of the Bar (California), "fair use is an equitable rule of reason (74)." Four criteria must be met before a use is considered unfair under sec. 107. One is the purpose and character of defendant's use. There does not appear to have been any commercial use or profit motive of defendant involved. Economic rights, but not moral rights, are generally recognized by the copyright law. Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir. 1976). Second, what function does the defendant's
...