The law may have a long reach, but it’s a slow-moving reach as well. Despite decades of Internet use and plenty of time to consider the ramifications to everything from copyright to taxes, there are still a number of pressing legal questions that have yet to be settled. Eventually those questions will be settled through what is known as “common law.” In other words, cases will arise and litigants will go to court where judges will interpret and apply the law and help to define its scope and intent.
The only trouble with rulings that eventually become common law is that they are unpredictable. You don’t want to be caught up in a lawsuit where you can’t predict the outcome or at least hedge your bets. In fact, you don’t really want to be in a lawsuit at all. To avoid copyright infringement and stay out of court, follow these guidelines to ensure that your website is protected.
Understand the Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a law in the United States that implements two treaties developed by the World Intellectual Property Organization (WIPO). In other words, it is the U.S. version of an international recommendation regarding copyrights and intellectual property. Other, similar laws, have been created in other locations. One example is the Electronic Commerce Directive adopted by the European Union. Because these laws have a similar origin, understanding and abiding by one will generally (not always) protect you from copyright infringement.
The DMCA contains five different provisions. In the first provision, the law addresses works created in other countries. Simply put, if a work is under copyright in the country in which it was created then, regardless of U.S. copyright standards, it is considered to be under copyright in the U.S. In the second provision is the requirement for copyright owners to register their work at the Copyright Office before they can raise a lawsuit regarding infringement (foreign works are except from this rule). If you create a work in the U.S., copyright protection is automatic, but you need to register it with the Copyright Office if you want to file a lawsuit for infringement.
The other provisions of the DMCA cover specific areas and types of work. For instance, the third provision says it is illegal to circumvent technological and copyright measures designed to prevent unauthorized access to copyrighted work. The exception to this rule, however, is the “fair use” doctrine, which makes it legal to circumvent copyright measures in some instances, though never technological measures. Additional exceptions in the DMCA include the law enforcement exemption, the encryption research exception, and the protection of minors exception.
Safe-Harbor and Other Users
The DMCA is large, confusing, and filled with exemptions. Complying with it can be difficult, to say the least, which is why certain measures have been introduced to protect websites and blogs from potential inadvertent infringement. If you follow the guidelines for appropriate use in the next few paragraphs, you will be protected from litigation.
The first thing a site owner needs to know is that if users post copyrighted content, you can’t be sued for their errors providing you have set up a “takedown” service. This is called the “safe-harbor provision.” It says that you need to designate a contact person or system that allows copyright owners to tell you that there is infringing content on your site. If a user posts copyrighted content and you have a notification system, then the copyright owner can’t sue you unless you refuse to take the content down or are excessively slow in removing the content. Part of meeting the law regarding a “takedown” agent is the provision that you must register the agent with the U.S. Copyright Office. You responsibilities as a site owner are to designate a “takedown” agent, post his/her contact information on your website, and register that person’s name with the Copyright Office.
User content is covered by the above exemption and the “takedown” agent, but content you post is not. Anything you put up on your site (i.e. it isn’t posted by site users) must be posted with permission if it is copyrighted. If you post someone else’s content without their permission, you are liable for damages regardless of whether you have a “takedown” agent or not. Note that this includes anything that employees post. Statutory damages for “willful infringement” can be as high as $150,000 per infringement and that doesn’t include legal fees and attorneys costs.
Safe-Harbor and Links
Linking to copyrighted material is illegal. Think of it in the same way that you would the law against receiving stolen goods. Pleading ignorance about links to websites that host copyrighted content will only work if you can prove that you didn’t know the site was infringing, that you did not receive financial benefit from the infringing activity, and that you removed the link or disabled it as soon as you learned about the infringement.
In order to gain the protections above, you once again need to have a “takedown” service in place and you need to comply with any notices that you receive as quickly as possible. In addition to having the service, however, you also need to create a copyright infringement policy and post it on your site. If you have users, they need to be aware of the policy. If you have employees, they too need to be aware of the copyright infringement policy.
Fair Use Doctrines
The fair use exemption in copyright law is perhaps the most poorly understood of all provisions. The “fair use” doctrine only covers “partial” reproduction of a work without permission. For instance, you can quote part of a work in a review, you can use limited passages of copyrighted material for scholarly or technical work, you can quote an author to illustrate or clarify his/her observations, and you can parody a work using some of its content, but not all of it.
Simply put, the fair use doctrine allows you to take small parts of a copyrighted work and reproduce them if you are doing so to illustrate a point, such as during teaching, reviewing a work, or critical analysis. You cannot ever use all of the work, even if you are teaching a free class, and you cannot ever use small snippets of a work to build a larger work that you then portray as your own.
Images are the biggest source of infringement. If you have images that you’ve taken from elsewhere, either remove them or get permission. It doesn’t matter if you’ve credited the creator if you don’t have permission, so don’t cross that line. The same applies to entire articles. It is generally impossible to post part of an image or article (though you can quote from an article), so these are where violations most often occur.
When you do go in search of content, pay attention to its copyright status. Creative Commons materials can be used freely and in their entirety so long as you follow certain guidelines. Most important, however, is to just say no. If you aren’t sure that a work can be used, don’t use it. Note that content created by the U.S. government that isn’t otherwise marked is considered to be in the public domain and therefore free for use.
