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Coping With Copyrights: 2

Coping With Copyrights: 2

December 10, 2004
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" webmasters have found themselves in copyright litigation as contributory infringers because of participation in affiliate programs "

This article is the second in a multipart series of articles addressing what a webmaster should know about copyrights and copyright law. In last month's article, I discussed the very basics of copyrights, including the purpose of copyrights and the broad range of works that are protected by the copyright laws. In this article we'll cover the powerful rights provided by copyright law and basic copyright infringement.

U.S. Copyright Law Rights
Copyrights are a set of exclusive rights provided to a copyright owner by the United States government. Because the rights are exclusive, copyright ownership confers a kind of government-enforced monopoly upon the owner. This is the basic reason why copyrights can be so useful, so valuable and such a problem for infringers. Essentially, the copyright laws entitle a copyright owner to wield the "big stick" of the United States government to enforce the copyright owner's exclusive rights.

For example, if you own a work protected by copyright that is being infringed, to enforce your rights, copyright law entitles you to invoke the power of the United States federal court system and the law enforcement apparatus of the United States, including the U.S. Marshals, the Customs Service and, potentially, even the Justice Department.

So, what specifically are these "big stick" rights? Copyright law in the United States provides six separate rights to copyright owners:

  • The exclusive right to reproduce the copyrighted work. This means that only the copyright owner has the right to make copies of the work.
  • The exclusive right to prepare derivative works based upon the copyrighted work. This includes the right, for example, to be the only party authorized to adapt a work, like a video or photograph, to a different medium, such as the Internet.
  • The exclusive right to distribute copies of the copyrighted work to the public.
  • The exclusive right to publicly perform certain types of copyrighted works (such as audiovisual works, including video clips).
  • The exclusive right to publicly perform sound recordings by digital audio transmission (e.g., via the Internet).
  • The exclusive right to publicly display copyrighted work.

These are all powerful rights, any of which, if infringed, could result in some very serious consequences for the infringer: direct and/or contributory copyright infringement.

So What Exactly Is Copyright Infringement?
A person or entity may be liable for damages to a copyright owner for copyright infringement if that person or entity exercises, without proper authorization, one or more of the exclusive copyrights reserved to the copyright owner. In such cases, the copyright owner can bring a lawsuit in federal court to obtain damages and enjoin the infringer's continued infringement of the copyright owner's work.

Let's look at a fairly common example of copyright infringement on the web. Suppose you own the copyrights in content, such as photographs, that you are distributing to members of your site pursuant to your site's terms and conditions ("T's & C's"). Suppose as well, that your T's & C's only grant a license to your members to use your site and the content available at your site for "educational or entertainment purposes only" and your license correspondingly prohibits your members from using your content for commercial purposes (note: your site's T's&C's should always contain this kind of prohibition). Now, further suppose a member, "Mr. X," is really another webmaster, and Mr. X copies content on your site and puts the content on his own membership site.

By doing so, Mr. X has exceeded the limits of the copyright license you granted to him in your T's & C's. Because of this, Mr. X has exercised, without proper authorization, several of your exclusive rights. First, he has infringed your exclusive right to make copies when he made an unauthorized copy of your content for his commercial site rather than for his own education or entertainment. Second, he infringed your exclusive right to distribute your content by distributing copies of the content without your authorization. Third, by including your content into his website, Mr. X also created a derivative work (i.e., his website, which is now partly composed of your content), thereby violating your exclusive right to make derivative works. In all three instances, Mr. X is a direct infringer of your copyrights in the content. This would entitle you to sue Mr. X in federal court and force him to stop distributing your content and to pay you money damages. This also means that you would be entitled to ask the court to force Mr. X to pay you all the profits you can prove he made from his improper exploitation of your content during the last three years.

Attorneys Fees
Additionally, under certain circumstances, you may be entitled to payment of your attorneys fees by Mr. X and to payment of "statutory damages" of up to $150,000 per work infringed regardless of whether Mr. X made any money unlawfully distributing your content. Yes, that's right, liability of up to $150,000 per work even if he never made a dime from your content. I will discuss statutory damages in greater detail in a subsequent article.

But continuing our example, Mr. X's infringement problems don't stop with his activities alone. By promoting would-be members to buy a membership in Mr. X's site so that they can download the site's content, including your content, Mr. X is also inducing further infringements by his members, who, by downloading your content, are also making additional unauthorized copies. These member-generated copies are also infringements. In such cases, Mr. X would be a "contributory infringer" with respect to the infringements of your content by his members. This can result in yet additional liability and additional awards of damages. In fact, it is not uncommon that damages resulting from contributory infringement can greatly exceed those resulting from an infringer's direct infringement.

Contributory Liability
Because the various online adult entertainment business models involve content promotion and distribution to numerous parties, including a site's affiliate webmasters, the potential for substantial contributory infringement liability is arguably greater on the web than for any other adult media. In fact, many adult webmasters have found themselves embroiled in copyright litigation as alleged contributory infringers either because of their participation in an affiliate program that has provided them with infringing materials or because one of their affiliates has generated traffic using infringing materials.

Because of the importance of these issues, and because "contributory liability" and the related concept of "vicarious liability" apply, not only to copyright infringement, but also to trademark and patent infringement, as well as to violations of criminal law.

Gregory A. Piccionelli is a senior partner at Piccionelli & Sarno, an Internet intellectual property and entertainment law firm located at 1925 Century Park East, Suite 2350, Los Angeles CA 90067. He can be reached at (310) 553-3375, or go to www.gregpiccionelli.com.


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