Liability for Copyright of Visitor Posts
Blog Sites Beware: Liability Lurks In Bloggers' Postings
If your site allows visitors to post digital files or comments
(e.g. in an online blog, as well as in a forum or chat room), you
could be held liable for copyright infringement if any of their
postings infringe the rights of another person, even if you are
unaware of the infringement. Under general copyright principles,
you would be strictly liable for their copyright infringement, even
if you are "innocent".
You could also be liable for defamatory statements posted by bloggers.
The Playboy Case And Copyright Infringement
A good example of an "innocent infringer's" liability
that occurred before the enactment of Digital Millennium Copyright
Act (DMCA) is the case of Playboy Enter., Inc. v. Frena, 839 F.
Supp. 1552 (M.D. Fla. 1993). In this case, Playboy alleged that
the defendants who operated a bulletin board service (BBS) were
liable for copyright infringement. Subscribers to the defendants'
BBS had illegally taken copyrighted photos owned by Playboy and
uploaded them onto the defendants' BBS.
The court found the defendants liable for copyright
infringement, despite the fact that the defendants did not upload
the photos (the subscribers uploaded them), and the defendants were
unaware of the presence of the infringing photos until the lawsuit
The court stated: "...intent or knowledge
is not an element of infringement, and thus even an innocent infringer
is liable for infringement ...".
The DMCA, enacted in 1998, provided a "safe harbor" so
that this harsh result can be avoided, but service providers must
take affirmative steps to qualify for it... or else you will suffer
the same harsh fate as Frena.
To qualify for the DMCA "safe harbor" from strict copyright
liability, you are required to:
- File the DMCA Registration Form with the US Copyright Office.
Liability For Defamatory Statements
In addition to liability for the copyright infringement of bloggers,
another pitfall to avoid if you permit visitors to post to your
site is liability for their defamatory comments about another person,
a competitor, or another product.
Defamation is an intentional false communication, made either orally
or in writing, published to a third party, which injures another
person or company's good name or reputation.
While it is clear you will be liable for defamatory statements
posted by you or your employees on your site, what about defamatory
statements posted by bloggers? Will you be liable?
Statements which consist of pure opinion are not actionable...
however, merely stating that a statement is pure opinion does not
make it so. For example, a law school professor was awarded $3 million
in damages arising out of defamatory statements published on a student's
Online defamation may occur in the context of product reviews
where strong statements are posted such as "do not buy this
product because it will not perform as advertised".
In addition, actionable defamation may occur where a site
publishes untrue promotional statements about a person or company.
For example, in one recent case, the Wall Street Journal was sued
by the Harrods department store for publishing the statement that
Harrods was the "Enron of Britain".
Congress came to the rescue of "interactive computer
services" in 1996 with subsection (c) of the Communications
Decency Act which provides: "No provider or user of any interactive
computer service shall be treated as the publisher or speaker of
any information provided by another information content provider."
47 USCA Sec. 230(c)(referred to below as "Section 230").
Section 230 was intended to overrule prior case law which routinely
held that online providers were liable as publishers and speakers
for third party content. Now, under Section 230, absent an affirmative
showing by a plaintiff that an online service provider is the author
of a defamatory message, email, or post, the provider should almost
always avoid liability for defamation. In other words, if you or
your employees are the authors of defamatory statements, you'll
still be liable, but if your website visitors are the authors of
defamatory material, you won't be liable.
A word of warning about another pitfall - be careful in
assuming an obligation to monitor messages, email, or posts
contributed by your site visitors or in exercising editorial control
over them. If you assume an obligation to monitor, or if you maintain
editorial control, and if you fail to screen out defamatory statements,
you may be liable, despite the protections of Section 230.
to which you exercise editorial control, if at all, over messages,
email, or posts of site visitors. And it's always best to reserve
the right to monitor postings, but not the obligation to monitor.
In summary, if you have a blog, take the steps discussed above
that are required to qualify for the DMCA "safe harbor"
from copyright infringement. Ensure that that your employees do
not post defamatory statements on your blog, and affirmatively disclaim
any obligation to monitor posts by bloggers.
Copyright © 2008 Chip Cooper
This article is provided for educational and informative purposes
only. This information does not constitute legal advice, and should
not be construed as such.
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Please note that these articles about Copyright are informational only. Please
consult your legal advisor.