The rules on copyright infringement
September 29, 2015
We got a notice that one of the bloggers on our website was using allegedly copyrighted material. Normally, we would just take it down, but we were later told sometimes we can’t just do that. What are the rules?
The U.S. Court of Appeals for the Ninth Circuit just muddied the waters for copyright owners by adding a new wrinkle to the takedown requirements of the Digital Millennium Copyright Act, but the operators of sites have the same requirements as they have had. But before we review the new wrinkle, let’s take a simplified look at the underlying DMCA requirements.
DMCA tries to strike a balance between encouraging free expression and protecting copyrights. If you are an Internet Service Provider, the balancing act operates through you. (If you contract with another commercial ISP, all of this information may apply to your contractor.)
Let’s say you are the ISP and have a blogger, Alice, who used someone else’s copyrighted material without permission. To make it easy, we’ll use the 9th Circuit example and say your blogger posted a video of a child dancing to Prince’s “Let’s Go Crazy” and that the blogger was not actually working for you, but was just using your site as a venue. Let’s also say your site has a stated policy for addressing repeated infringers (as the law requires), but that this blogger is not one of those.
Universal Music, which produces Prince, sends a letter saying: “We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent of the law.” The letter is signed, and it identifies the relevant work that it says was infringed, and provides contact information, as required. If you’re not clear on exactly what the letter means, it is on you to get clarification.
The first thing you do—as quickly as possible—is take down the material. Then you have to provide notice to the blogger that a copyright violation has been alleged. It is up to the copyright holder to respond with a counter notice, saying she believes in good faith that the material is not an infringement, providing her contact information, and consenting to the jurisdiction of her local federal court if Universal wishes to sue. After getting the counter-notice, you may put the information back on the website. Then it is up to Universal to sue Alice if it wants to protect its copyright, and—if you have followed all necessary steps—you are immune from the suit.
Now let’s switch it up and say that instead of being the ISP, you are the owner and publisher of copyrighted material, and you found your own material on a competitor’s site. First, you find out the identity of the ISP by using a “whois” database. Then you prepare to submit your notice to the ISP that the material is yours so the ISP can carry out its takedown obligations and notify the person who posted it. BUT, now in the 9th Circuit, you have one more step to complete before you contact the ISP. You now have to first consider whether the use of your material might be allowed under a fair use privilege. Your consideration doesn’t have to include a major investigation, but it has to include something more than “lip service,” according to the appeals court.
What does that mean?
Fair use determinations involve a complex and often subjective analysis of whether the use of material is a copyright violation. The analysis includes such elements as the harm to your own market for material, the gain for the user’s market, the portion of the material used and how much the user transformed the material into its own creation. In one recent case, the fact that a newspaper owner of the photo of a flag being posted at the World Trade Center ruins was offering that photo for licensing to others helped to defeat another’s claim of fair use.
We will know more about how much soul searching you must do before deciding whether someone had a fair use right to your material. But it is probably safe to say that if you spot a competitor using your material for its own competitive purposes and you believe the use impairs your market, you will have a credible defense against a fair use claim.
The U.S. Copyright Office now has useful information on protecting your copyright, as well as protecting your own fair use privilege, on its website at www.copyright.gov.