Legal Concerns on the Web: Copyright
Infringement
By Eric S. Freibrun, Esq.
"Web, Schmeb," says syndicated
computer columnist John Dvorak in March’s issue of PC Computing, summing up his user
viewpoint that the World Wide Web is over-hyped, offers scant information of any value,
and is too slow. In other words, it’s a big waste of time.
Such utterances from disgruntled users
aside, many businesses view the Web as a dynamic new advertising medium and have leapt
into the fray, often with insufficient understanding of the many potential legal pitfalls
distributing information on the Web entails.
Last month, this column addressed the
issue of domain names and potential trademark infringement concerns businesses need to
consider when choosing and registering a domain name. This month’s column expands on
a prior discussion of potential copyright infringement liability for the copying and
transmission of someone else’s copyrighted materials over the Web.
An issue that virtually every business
operating a Web site needs to consider is who owns the copyright in the content that the
site will display and transmit. Copyright protection extends to various forms of
information, including text, graphics, data, audio, video and photographs. The copyright
owner, usually the creator or author of the work or materials in question, or one to whom
the author has assigned his or her rights, e.g., an employer, has the exclusive right to
copy, modify, distribute, and publicly perform and display the copyrighted work. A company
that has created materials for display or distribution on its Web site will typically own
the copyright to those materials. In this situation, no infringement concerns arise. But
what about the situation where a company wants to make available via its Web site someone
else’s copyrighted materials?
Let’s take a hypothetical involving
a Web site operator who scans the text of a printed journal onto its computer in order to
make it available for downloading from its Web site. The company operating the Web site
knows the journal is copyrighted and doesn’t obtain authorization from the
journal’s publisher to copy, display or distribute the journal. If the journal’s
publisher sues for copyright infringement, a court would likely find the Web site operator
liable and might award the publisher both monetary damages and injunctive relief. The
publisher would argue that the Web site operator created illegal copies of the journal in
two ways: by scanning it into electronic form onto its server hard drive, and by its
computer creating a copy in random access memory (RAM) each time someone requested the
journal from the Web site operator’s server.
The journal publisher might also be able
to successfully argue that the Web site operator was liable for illegal distribution of
the infringing copies, given current caselaw – even though the Copyright Act does not
specifically prohibit the unauthorized electronic transmission of infringing copies, but
the distribution of infringing copies "by sale or other transfer of ownership, or by
rental, lease or lending" (17 U.S.C. §106(3)).
Let’s take another wrinkle. What if
your company decides it would benefit from creating a hypertext link from its Web site to
the first site containing the infringing copy of the journal? Would your company be liable
to the publisher for copyright infringement along with the operator of the first site?
The exclusive rights of a copyright owner
described above arise automatically upon creation of a copyrightable "work of
authorship." Registration of the work with the Copyright Office is not necessary to
obtain copyright protection. It is, however, a prerequisite to being awarded statutory
damages against an infringer. Statutory damages can be steep: up to $100,000 per infringed
work if the infringement was done in knowing violation of the law.
The Copyright Act not only provides for
direct liability for infringement, as would likely result from the first Web site operator
copying the journal articles as described above, but for contributory and vicarious
liability as well.
A contributory infringer has been defined
in numerous court decisions to be one who, with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing conduct of another, often by
providing services or equipment that facilitate the direct infringement of the protected
work. To be found liable for contributory infringement, the alleged infringer must know or
have reason to know that its conduct may lead to an infringement.
Similarly, vicarious liability results
when the alleged infringer has the right and ability to control or supervise the
infringing activity of another and derives a financial benefit from the exploitation of
the copyrighted materials. Actual knowledge of the infringement is not a prerequisite for
vicarious liability. The law, in essence, punishes the vicarious infringer for sitting
idly by and benefiting from the infringement if it could have prevented it.
In our example, someone whose Web site
links to the first Web site containing the infringing journal materials arguably
facilitates the infringement of the publisher’s copyrights. The linking site provides
a means to connect users directly to the infringing copies of the journal on the first
site. But unless the publisher can prove that the operator of a linking site knew or had
reason to know that the journal materials on the first site were infringing copies, there
may be no contributory infringement liability. The operator of the linking site may also
escape vicarious liability for infringement unless the journal copyright owner can
successfully argue that the operator of the linking site financially benefited from the
link to the infringing journal materials on the first site, and had the ability to control
or supervise the infringing conduct of the first site’s operator. Proving the latter
point may be especially difficult.
There is not yet any caselaw directly
addressing the issue of a Web site operator's liability for contributory or vicarious
copyright infringement for providing a link to infringing material on another site.
Businesses seeking to take advantage of the World Wide Web should obtain the advice of
competent legal counsel in deciding what materials they may display or link to on their
sites – lest they relish the prospect of becoming cyberlaw trailblazers.
This article is provided for general
informational purposes only and does not constitute legal advice. Each factual situation
is different and requires specific analysis.
Attorney Eric Freibrun specializes in
Computer law and Intellectual Property protection, providing legal services to information
technology vendors and users. Tel.: 847-562-0099; Fax: 847-562-0033; E-mail: eric@freibrun.com.
Copyright © Eric S. Freibrun, Esq., Law Offices of Eric S. Freibrun, Ltd. All rights
reserved.
