Protect your website from copyright infringement claims

From the earliest days of the internet, online technology has allowed users to access and distribute copyrighted content with seemingly reckless abandon. In recent years, however, high-profile copyright holders like major record labels and TV studios have harnessed technology to detect—and demand payment for—online infringements of their works. Now, as wider adoption of online detection tools drives down the costs of discovering infringement, many more companies and individuals are turning to such tools to protect their copyrights. Image recognition is one such tool that is proving extremely useful for owners of visual works to police use of their works online. Companies like Digimarc, PicScout, and Idée are exploiting the emerging market for copyright infringement detection by using sophisticated robots (also known as spiders) that troll through web sites image by image to find uses of their customers’ creative works. The robots then report those uses back to the copyright holder and, if no license is found, the copyright holder will typically seek damages for the unauthorized use. While the expense of these services had previously limited their use primarily to large media companies, new developments like the TinEye service from Idée promise to bring online detection of unlicensed images to a wider base of copyright holders. What will these developments mean for website owners who are using these images? As copyright holders discover more unauthorized uses online, unsuspecting website owners will see an increase in cease and desist letters, Digital Millennium Copyright Act (DMCA) takedown notices, and, of course, demands for payment. The strict-liability nature of copyright law is often poorly understood by typical website owners, and anyone without scrupulous practices for licensing digital media risks liability for copyright infringement. Website owners, a group that encompasses practically every business and countless individuals, can take several specific steps to protect themselves from copyright infringement claims: (1) License all content. While this may seem elementary, there is still a common misperception that if something is available on the internet then it must be in the public domain. This is not the case. And just because a work doesn’t have a copyright notice doesn’t mean it is available for free; Congress abolished the notice requirement for all works published after March 1, 1989 to comply with an international treaty. As noted above, copyright infringement is essentially a strict liability offense—where infringement in fact occurs, intent to infringe is not required to establish liability and a person can be held liable for damages even if he didn't know that he was infringing. This means that the burden is on a user of content to ensure that he has obtained proper permissions, not on the copyright holder to police her work. And the best way to make sure you have proper permission is to buy a license from the copyright holder. (2) Supervise your web designer. Relatively few businesses create and maintain their own web sites; most outsource this work to a web designer of some sort. But the owner of a website is ultimately responsible for the content it contains, so it is important to ensure that any web designer obtains all necessary permissions to use creative content. A savvy website owner will demand copies of all licenses for content of any kind. On top of that, a website owner may seek both a warranty from the web designer that the designer has obtained all necessary licenses as well as indemnification should any infringement claims arise concerning the website. But the licenses themselves are of paramount importance; contractual claims have little value against a struggling or defunct web designer, but a valid license will often defeat—and will at least mitigate potential damages resulting from—an infringement claim. (3) License from the proper party. This step can be easier said than done. Where an author has registered her work with the U.S. Copyright Office, a potential licensee can demand to see a copy of the registration certificate or search the copyright records online to verify ownership. But registration is not required for copyright protection to vest in a work, and anyone can fraudulently claim authorship of an unregistered work. Even with registered works, an author may have already transferred her licensing rights to a third party. The best solution is to seek warranties and/or indemnification from the licensor that she has all necessary rights to issue the license. (4) Keep records of your licenses. Again this seems elementary, but most people don’t realize that content is often licensed for specific uses and durations. Any use that exceeds the license is technically infringement and is actionable as such. In practice, however, a copyright holder will often seek license-extension fees from someone who can show that he holds a valid-but-incomplete license rather than sue for full-blown infringement. Extension fees are usually much less costly than defending against an infringement claim.   (5) Comply with the DMCA. This suggestion applies primarily to owners of websites that allow users to post and edit their own content online. Such websites include content-sharing sites, social networking sites, and even blog sites that allow users to post comments to blog entries. Without DMCA protections, website owners risk being held primarily liable for copyright damages whenever an outside user posts infringing content on the site. And while the DMCA shield is powerful, it is not automatic; website owners must comply with the specific requirements of the statute including (but not limited to) registering with the Copyright Office as an <a href="http://www.copyright.gov/onlinesp/" title="U.S. Copyright Office">Online Service Provider</a>, publishing the contact information of a Designated Agent for handling DMCA takedown requests, and complying with such requests within the statutory time periods. While this list isn’t exhaustive, these basic steps will go a long way towards insulating website owners from copyright infringement claims and defending any claims that do arise. For more information, the Copyright Office maintains several publications on its website, www.copyright.gov, to help content users navigate copyright law. Disclaimer: This article may not be current, accurate, or complete at the time you read it.  Furthermore, the article's content should be construed as  information only and does not constitute legal advice. This article should not serve as a substitute for consultation with a professional attorney. 2008-07-23T16:49:19Z

2008-08-04T19:06:04Z

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protect-your-website-from-copyright-infringement-claims

2008-08-04T19:05:58Z

Website owners face an increasing number of claims for copyright infringment as copyright holders utilize sophisticated detection technologies. This article describes five steps that website owners can take to avoid copyright infringement claims and mitigate any claims that may arise.

Protect your website from copyright infringement claims

2009-02-24T09:45:14Z