Session 3

Webmasters and ISPs

Assume you are posting or reading digital media (MP3, photos, film clips, book excerpts, etc) over the Internet, through a LAN at the office, or just managing your own personal website. Your browser reads and caches each page, you follow the links to related pages of interest, and you decide to copy for your personal files a snapshot from USA Today or a new music clip. Your personal web page is designed to showcase outdoor photography, your hobby, and you have a section for discussion groups and live chat sessions. There are already a large number of photographs that have been submitted by visitors, some of which they have taken, and some which were likely copied from other sources. As you check your e-mail, you download an attachment from a friend that may be a copied web page or a picture. As part of your workday, you update a portion of your company website with photos you found on the web, or from your co-worker’s CD-ROM clip art collection, to make the announcements interesting. Finally, you are a subscriber to several travel news groups, and one of the members has posted some commercial maps and information about a vacation spot that you may visit this summer, so you copy a portion to your computer to send on to the family reunion. Any copyright problems? Well, some of the more identifiable ones are underlined!

Types of Copyright Liability. First, recognize that there are two types of potential copyright liability – vicarious (a party has the right and ability to supervise infringing activity by another party even when there is no actual knowledge of the infringement) and contributory (one party materially contributes to the infringement). In the above scenario, you could be liable under both theories, for direct copying, and for facilitating it over your website. In both cases, infringement is what is known as a “strict liability tort”. You can be guilty and subject to damages and injunctions whether on not you knew the material was on your site, and whether or not you authorized it.

DMCA. Online publishers increasingly were found by courts to be liable for contributory copyright infringement (centerfolds in Playboy Enterprises v. Frena; digitized music in Compuserve; copies of video games in Sega Enterprises v. MAPHIA), so in 1998 Congress passed the Digital Millennium Copyright Act (17 U.S.C. 512). The first part affirmed several international treaties, increased civil and criminal penalties for producers of technology or devices that are designed primarily to circumvent copyright protection, and expanded the list of copyright exemptions for nonprofit libraries, archives, educational institutions, law enforcement, reverse engineering, violations by minors, and security testing. The second part of the Act addressed the liability of ISPs for copyright infringement by providing “safe harbors” if the provider adopts and implements reasonable policies concerning terminating subscribers who transmit infringing material, and does not interfere with methods that a copyright holder may implement to identify (“electronic traces”) and protect their works. The 4 protections for the ISP (or any online publisher) are for simply transmitting infringing material without knowledge of its contents, caching web sites for faster access by subscribers, long term storage of information at the request of a user, and links provided by the ISP to other web sites.

Terms of Service Agreement. It would appear that the “safe harbors” of DCMA would relieve a webmaster from most cases of copyright infringement, but to qualify for its protection, the ISP or webmaster must first designate an agent to receive notification of the claimed infringement from copyright owners, register the agent with the designation with the U.S. Copyright Office (see sample forms at http://lcweb.loc.gov/copyright/onlinesp/agent.pdf ), and adopt a written procedure for providing for termination of user (subscribers and account holders) who repeatedly violate the copyrights of others. The information about the agent and the procedures are best posted on the website (see sample Notice in Course Handouts). DCMA will protect the webmaster not only from copyright infringement claims, but, if the “take down” procedures are carefully followed, also from any claims by the user that the material was improperly blocked or removed. Every web site which allows interactive areas such as chat rooms or message boards, or, in the case of business or government intranets, the posting and collaboration of documents that could be imported from outside sources, should provide the DCMA notices and procedures as part of its “Terms of Service” agreement which requires users to read, register and accept before they can utilize the interactive areas of the LAN or website.

“Take-Down” Procedures. If there is a complaint of infringement filed, and a service provider removes or blocks material posted by a user, it must take some additional steps to notify the user, which may eventually lead to putting the material back on the system. First, there must be prompt notification that the material has been blocked or removed. If the user sends back a response the blocking was a result of a mistake or misidentification of the material, this is forwarded back to the alleged copyright owner. If the copyright owner then notifies the service provider that it has begun court action to restrain the alleged infringement, the provider must replace or unblock the material not less than 10 nor more than 14 business days after receiving the counter notification. In addition to these DCMA procedures, there should be notification on the interactive areas that the webmaster or ISP has the right to remove or disable access to any content that, in the sole discretion of the provider, may find to be inappropriate. This covers material that may be defamatory, obscene, or illegal, as well as copyright infringement.

Web Linking. “Surfing” the Internet usually means following related links to other sites, or, more recently, bookmarking key “gateway” sites that group related links. What if the link takes the viewer to material that is illegal, such as terrorist tactics (Germany), pornography (Japan), or copyright infringement (Holland and U.S.)? Can the original site be held liable for content off-site? Recent cases show there can be liability, particularly if there is knowledge by the page operator that the links will lead to illegal postings, or, whether or not there is actual knowledge of an infringement or not, if the operator receives financial benefit for posting the links. In one case, Intellectual Reserve Inc. v. Utah Lighthouse Ministry , the Court determined there could be vicarious liability for copyright infringement on the operators of the website, who had removed posting the material (excerpts from Mormon Church documents), but then encouraged users to post additional websites where the documents could be found in the news groups and message boards of the site. The liability of a site operator to regulate the postings of the Scientology documents on their bulletin boards was resolved favorably for the website in Netcom in 1995, primarily because the Court found there was no evidence that the site derived a financial benefit from the linking, but now the case may have been overruled by the DCMA procedures. A newer area of linking liability exists where sites are linked without permission from the original page owners, and the linking page does derive a benefit in the form of attracting browser rankings and site usage that allows increased fees from its banner advertisers. Of course, by bypassing the opening pages and content of the linked site, the linked site loses the user count, as well as the ability to control the site path. This “deep linking” was recently resolved in favor of the defendants in Ticketmaster Corp. v. Tickets.com, Inc (U.S. Dist Ct C.D. Cal, March 27, 2000), but increasing commercial gain from providing access to online purchases, price review services, and comparisons that depend on retrieval of information from other commercial sites could again raise not only copyright issues, but those of trademark infringement, unfair competition, and other business torts.

Framing. The above link to the Ticketmaster case illustrates the potential problem of framing – the ability to link to an outside page, but retaining the original page’s borders, menus, and banners. The question is whether the framing infringes on the copyright of the sought page, such as its advertising revenue associated with viewer count, and particularly if the framing cuts off some of the retrieved site. Framing also occurs in use of “meta-search” engines that retrieve data and partial descriptions of the topic sought, or sites that allow users to set up “Personal Pages” (Findlaw and Yahoo are examples). The original sites can also claim trademark infringement in the misuse of its design if it is not copied correctly, or if there is any inference that the linked site is in a business association with the original site. Finally, users who sign up for automatic upgrade of favorite sites for downloading and offline viewing become potential defendants along with the operational software and the site allowing the option. Offline downloading allows the ultimate user much more time and flexibility to use the copyrighted sites for their own presentations, collections, posting on office intranets, and other possible abuses. Copyright law may well view these versions as “derivative works” that still exclusively belong to the creator.