Does the Internet Users Copying of the Authors Work Constitute Infringement of the Authors Copyright?
In copyright infringement cases, the plaintiff must prove similarity of his or her work to that of the defendant in two ways and for two distinct reasons. First, the plaintiff must prove that the defendant, as a factual matter, had access to plaintiff’s work and thus, based on proofs submitted into evidence, actually copied portions of this work – a process of proof which has been termed “probative similarity.”29 Second, the plaintiff must prove whether, as a mixed issue of fact and law, those elements of the work that have been copied are protected expression and of such importance to the copied work that the appropriation is actionable – i.e., the “substantial similarity” analysis.30 Assuming that the court finds the defendant’s and plaintiff’s works to be sufficiently similar to warrant further inquiry into copying, the plaintiff ordinarily must also prove based on a preponderance of circumstantial or direct evidence that the defendant had access to the plaintiff’s work.31 Without a
