New York Real Estate Lawyer Blog
So, you spend a lot of time blogging, or you have swell content on your web-site which someone has blatantly copied (hijacked). What do you do to protect your copyright or trademark?
The Problem
The drafters of the Copyright Act (1976)) never contemplated the ease and speed of copyright infringement made possible by technological advances which include the Internet which has billions of pages of content.
A copyright is a set of exclusive rights granted to an author – or owner – of an original work fixed in tangible form for a limited and specified period of time. Original works may include literary, dramatic, musical, artistic, and certain other intellectual works. Ownership is obtained when an author (the owner) creates an original work and fixes it in a tangible form. It is a “violation” or “infringement” to copy, distribute, or adapt a work during the term of protection.
When it comes to the Internet infringement occurs in various, but often not blatant ways. The infringement occurs by faceless and nameless third parties, but occurs in the medium known as the Internet. So, owners of the copyright are economically encouraged to go after the internet providers because they are most “visible” and identifiable. This is type of infringement action seeks to enforce copyright liability through “contributory” or “vicarious” infringement.
Contributory infringement occurs when a person acts knowingly to cause or induce infringing conduct. Vicarious infringement, on the other hand, occurs when a person has both the ability to control an infringe’s actions and benefits financially from the infringement.
Defenses to Infringement
In all cases, the potential infringer has certain “defenses” to liability for infringement. One such defense is known as “fair use,” another is the First Amendment’s protection of free speech. “Fair use” allows the use of copyrighted materials for purposes of criticism, comment, teaching, scholarship, or research. The idea is to balance intellectual property rights against the free exchange of information and opinion– which is a large reason that the Internet exists.
Courts determine whether copyright infringement occurred (or whether it is a “fair use”) on a case-by-case basis factoring: 1) purpose and use of copy, 2) nature of copyrighted work, 3) amount copied, and 4) copy’s effect on the copyrighted work’s potential market.
Applying this “fair use” to the Internet world is a difficult task for Congress and American courts. Internet content providers argue their use of copyright works is fair use; Copyright holders and content creators argue that their protections are being infringed.
Under the First Amendment, the idea is that anonymous encouraging a certain ‘freedom of expression,” which we as Americans hold dear The challenge to free speech is that compulsory disclosure of the identity of the speaker may discourage free speech opportunities where people are more likely to voice their opinion and provide information. One side promotes Internet anonymity because it promotes the First Amendment rationale that democracy is most effective when there is an open exchange of ideas.
The Balancing Act
Congress has tried to balance the challenges and the burgeoning infringement cases by enacting The Digital Millennium Copyright Act (DMCA) (1998) to provide safe harbor provisions for Internet Service Providers (ISPs) and web hosts, while giving a voice to the copyright owners.
The first step to pursuing a copyright claim against an ISP or a web-hosting company is to request a DMCA take down notice. The copyright owner may send “notice” to the ISP demanding the removal or blockage the copyrighted material. The ISP must reply promptly and comply to remain exempt from liability for contributory or vicarious infringement.
The take down notice under the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”) must contain several legal buzzwords and address various legal requirements, but is a great first step toward having the copyright honored and protected by the Internet chiefs who control the content.
The Bottom Line– the cost for investigation and prosecution of a take down notice against the web-site provider is not prohibitive. Contact your friendly Internet and intellectual property lawyer to protect your interest.