Copyright Infringement Pitfalls in the Online Arena
October 2000
There is a tendency to assume that something
acquired for free is public domain, particularly as respects material on the
Internet. This can be a very costly assumption. Discover the copyright pitfalls
and learn how to avoid them in this insightful article.
by Sanford
E. Warren Jr. and Kenneth T. Emanuelson
Winstead Sechrest
& Minick
Picture the following scenario. It's a busy workday in the not-too-distant
future. Getting a short break from the demanding task of guiding your business
through the shark-infested waters that make up the modern online marketplace,
you take the opportunity to make a valiant attempt at shrinking that pile of
mail on your desk. On the top of the stack is an official-looking off-white
envelope bearing an intimidating green "certified mail" sticker. Opening the
envelope, you are greeted by the following correspondence:
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TOUGH & MCNASTY, LLP
Mr. L.M. Startup CEO
Lean & Mean Startup, Inc.
Palo Alto, CA
Re: Your Web site at http://www.leanandmeanstartup.com
Dear Sir:
Our firm has been retained to represent COPYRIGHTOWNER.COM in intellectual
property and other matters. It has come to our attention that your company
has, for some time, been copying, using, and commercially exploiting
certain of our client's copyrighted materials on your Web site without
permission, in violation of federal copyright law. As you are probably
aware, the copyright statutes of the United States provide for monetary
damages for copyright infringement. Our initial audit of your Web site
has uncovered numerous acts of infringement, and we are presently conducting
a more thorough audit which may uncover additional infringements. Depending
on the facts uncovered upon further investigation, your liability to
our client may exceed $1 million...
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Copyright infringement?? Violation of federal laws?? One million dollars??
A letter like the one above could very well ruin your whole day.
In addition to whatever monetary liability your firm may incur, a copyright
infringement allegation has the potential to consume considerable portions of
your valuable time and that of your most important employees, even if a lawsuit
is never filed. In the event a lawsuit is filed, there is no telling how much
time, expense, and grief you and your company may have to go through before
the issue is ultimately resolved, even if you are successful in defending the
suit. And if you lose, there is that little matter of the monetary damages,
which, although they will probably not reach a million dollars, may end up costing
you a considerable chunk of hard-earned cash.
This article examines why it is extremely important to proceed with caution
in the creation and development of your company's online presence and be aware
of the pitfalls that lie in wait for the unwary.
The Internet and Copyright Infringement
The Internet has become an incredible resource for all areas of human activity.
In business, education, recreation, and research, the amazing capabilities of
the Internet have truly put the world at the fingertips of the savvy user. Although
viewing of a Web site technically involves "copying" the site content, searching
and surfing activities really do not present much in the way of potential copyright
liability for the Internet user. It is what is done with acquired Web content
that presents the problem.
Professionals working in the highly competitive Internet marketplace are
under heavy pressure to produce useful Web content while constantly fighting
to stay one step ahead of their competitors in the market. Accordingly, Internet
innovators have developed a wide range of novel approaches to providing a wealth
of cutting-edge information for the benefit of their customers. Examples include
"information mining"—the automated extraction of data from online sources, and
"framing"—the redisplay or re-interpretation of a Web page in a slightly different
form. Although the developers of these algorithms should be commended for their
ingenuity, Web professionals making use of such algorithms should make themselves
well aware of the copyright liability implications of their use.
The courts have made it abundantly clear that copyright protection is not
limited to the protection of the printed word on paper. As technology has given
us new media for the storage and transmission of information, these new media
have been understood to fit within the copyright law, so as to promote the ends
for which copyright law was originally created. As with other media, copyright
law has been applied to the Internet when the courts have considered it appropriate,
and the courts have not hesitated to find copyright infringement where protected
materials have been posted on the Internet without the author's permission.
The law of copyright has been applied to the Internet according to essentially
the same rules as those applied to other media, including print and broadcasting
media.
One reason that the Internet poses such a serious potential for copyright
infringement liability is the ease with which copyrighted material can be located,
electronically duplicated, and redistributed. What once took hours—or at least
a few minutes in the heyday of libraries, using cassette tapes and photocopiers
--can be performed in seconds in the age of the Internet. In many cases, copyrighted
material can be located, copied, and distributed without any human interaction
required whatsoever. Infringement tends to become more likely as copying becomes
easier, and can become automatic where copying is automated. With such a wealth
of information at your fingertips, the opportunity to use another's work as
your own has, for many, been too great a deal to pass up—with serious consequences
if and when such unauthorized use is discovered.
The potential for copyright infringement arises after the Web page content
has been downloaded to computer memory and the user, or a software program,
does something with the material other than review it. Once it is in the computer
memory, the local system can do essentially anything with it, and this is where
the problem begins.
Web page content downloaded to a user's computer can be copied from one application
to another in a mere handful of mouse-clicks or computer instructions. Text
can be dragged into a word processor and revised, and images can be pulled into
image software and edited. Any of these by itself can constitute a copyright
infringement, and can give rise to liability to the owner of the copyright,
and a mountain of potential headaches—and possibly legal bills—that go along
with it. There is a tendency to assume that something acquired for free is public
domain, to do with as one chooses. This can be a very costly assumption, especially
considering the relative ease with which such infringement can be discovered.
The Internet, and in particular Internet-based publication, presents additional
liability for the Internet-based business due to the increased likelihood that
copying and reincorporation of copyrighted material will be discovered, as compared
to more traditional advertising media. In the context of traditional direct-mail
advertising, as an example, a flyer or brochure incorporating a substantial
degree of infringing material might be sent to the customer base of even a sizable
company without a high likelihood that the use would be identified by the owner
of the copyright. In contrast, a document, or even a small portion of a document,
posted on the Web essentially becomes an entry in a vast, indexed database.
Due to the wonders of automated search routines, the contents of your Web site,
including any infringing materials, soon become readily accessible to all the
world, including the owner of the copyrighted material and his or her attorneys.
What Is Protected?
There is no doubt that many copyright infringements occur completely innocently.
Clearly, it is not always readily apparent, particularly to those not trained
in copyright law, what is and what is not protected. Because of the manner in
which copyright protection attaches to a work, it is always prudent to assume
that material is protected until you clearly determine otherwise.
Copyright protection is governed by federal statutory law. The copyright
laws of the United States protect "original works of authorship" that are "fixed
in any tangible medium of expression." Although the scope of that which constitutes
"original works of authorship" is not rigidly defined, the standard of "authorship"
is fairly low. Even if an author contributes only a small portion to a large
work, or merely adds his own style to an existing public domain work, the author's
contribution is his own, and he has rights in the resultant work.
As to fixation, a work is "fixed" in a "tangible medium of expression," for
example, when it is stored in a computer's memory or saved on a disk. In light
of the above, it should be clear that most materials are protected by copyright
to some degree.
Copyright protection gives the holder of the copyright a group of exclusive
rights in the work. The rights, as defined by federal statutory law, include
the right:
- To reproduce the copyrighted work in copies or phonorecords
- To prepare derivative works based on the copyrighted work
- To distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership or by rental, lease, or lending
- In the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures, and other audiovisual works, to perform
the copyrighted work publicly
- In the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual
images of a motion picture or other audiovisual work, to display the copyrighted
work publicly
- In the case of sound recordings, to perform the copyrighted work publicly
by means of a digital audio transmission [17 U.S.C. § 106]
Contrary to popular belief, a copyright notice, such as the traditional (c),
a date, or the name of the author, is not required in order for copyright protection
to apply to the work. Furthermore, although a formal registration procedure
is provided for under federal law, no formal registration is necessary for copyright
protection to attach. Formal notice and formal registration were required by
law in the United States at one time, but under current law, a copyrighted work
is protected against unauthorized copying even without any copyright notice
or attribution. Copyright protection attaches at the point in time that a work
is first "fixed" in a "tangible medium of expression." It is crucial that all
employees and consultants responsible for your Web content understand these
facts. Good information on copyrights can be found on the official web site
for the U.S. Copyright Office located at http://www.copyright.gov/.
Fair Use
Although the rights and protections afforded to an author by the copyright
law are significant, they are not absolute. The law recognizes a concept known
as "fair use," which allows members of the public to make certain, limited uses
of a copyrighted work for certain, limited purposes. The concept of fair use
provides a "safe haven" within the exclusive rights conferred by the copyright
law and permits a member of the public to make limited use of a copyrighted
work in a limited and reasonable manner without the consent of the copyright
owner.
The courts have made it clear that the fair use defense applies to the Internet
in essentially the same manner as other media. A fair use inquiry will always
be somewhat subjective but, in general, where the use is of mostly factual information,
where the portion of the work copied is relatively small, and where the use
would not reasonably be expected to have a negative impact on the market for
the author's work, fair use is likely to be found. Alternatively, where the
use is of a primarily stylistic nature, where a substantial portion of the original
work is copied, or where a copyright holder can show a negative impact on the
market for the original work, the fair use defense will likely be unavailing.
Due to the variety of factors involved in, and the gray areas inherent in
any fair use inquiry, the reader is encouraged to seek expert legal counsel
regarding the specifics of a particular case before proceeding to copy protected
material without authorization.
Conclusion
Our goal in writing this piece has been to shed a little light on the serious
potential for infringement liability in the e-commerce realm. Summing up the
above, it is important to remember the following points.
- The scope of material available via the Internet, combined with the
nature of electronic media, make copyright infringement easier than ever
before. Accordingly, it is crucial that the professionals responsible for
your Web content be familiar with the basic rules of copyright.
- The nature of the Internet makes detection of infringement easier than
ever before. Accordingly, it is crucial that the professionals responsible
for your Web content be aware of the likelihood of detection as well as
the potentially serious consequences of infringement.
- Owing to the broad scope of copyright protection and the fact that notice
is not required for protection to attach, any material found on the Internet
or elsewhere should be presumed to be protected until it is determined to
be otherwise.
- The concept of "fair use" provides a safe haven allowing for copying
of limited portions of copyrighted works for limited use, but the specifics
of a particular case should be thoroughly reviewed prior to any such copying.
The above discussion is, of course, not an exhaustive discussion of copyright
law. The details of any one of the above points could fill—and, in fact, have
filled—books. Our hope is that the above discussion has provided some food for
thought and alerted the reader to potential pitfalls to be avoided in the copyright
arena. It should be understood, however, that every fact pattern is different,
and general principles are no substitute for informed legal advice regarding
the specifics of a particular case.
Ken Emanuelson is an associate with the intellectual property section of Gardere & Wynne, LLP.
His clients range in size from small startups to established Fortune 500 companies,
in various areas of technology, from online commerce to aerospace. His regular
practice includes client counseling in all areas of intellectual property law,
patent and trademark drafting and prosecution, litigation, licensing negotiation,
and infringement analysis. In his prior career as an engineer, Mr. Emanuelson
worked for Texas Instruments and Ford Motor Company. His engineering experience
included work in semiconductor processing, factory automation, microwave communications,
aerospace materials, automotive technology, and superconductive ceramics. Mr.
Emanuelson is a graduate of the University of Texas School of Law, where his
course of study focused primarily on patent, trademark, and copyright law. He
also holds a BS degree in mechanical engineering from the University of Arkansas.
He can be reached by email at Kemanuelson@gardere.com.
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