Good Website Content Gone Bad
Intellectual Property: Why "Borrowing" Web Content Is
A Really Bad Idea
We've all been there before. There's some graphics or content (or
even website legal documents) on the web that you like... there's
no copyright notice associated with it. You'd like to take it and
incorporate it into your site, right? It's so tempting, but DON'T
Copyright Infringement Issues
Under the US Copyright Act, there is a principle some refer to
as the "rule of automatic copyright". This rule provides
that once an author or artist:
- Creates a work of authorship (text, graphics, content),
- that is fixed in a tangible medium of expression (can be perceived
by a person even if a machine or device is required to do so),
- copyright automatically vests in the author or artist (regardless
of whether the work has a copyright notice or whether it is registered
with the Copyright Office).
So, you need to secure the appropriate permissions before using
the graphics or content. Failure to do so, can cost you dearly.
An illustrative case is the case of Photo Resource Hawaii, Inc.
v. American Hawaii Travel, Inc., No. 07-00134 DAE-LAK (Dist. Hawaii
Dec. 12, 2007). In this case, the defendant never had rights to
the content, and he was ordered to pay $48,000 in statutory damages,
$5,145.55 in attorney's fees, and $386 in court costs.
The same result is true if you had permission to use the material,
but the permission expires or terminates. Even if use was originally
with permission, use after expiration or termination will get you
sued. In the case of Chase Jarvis v. K2 Inc., No. CO3-1265Z (W.
Dist. Washington Dec. 12, 2003), the defendant was nailed for infringement
because his content license had expired.
Ditto For "Borrowing" Someone Else's Website Documents
You realize that it's past time for you to add the website disclaimers
and documents to make your site legally compliant. So, what to do?
You consider "borrowing" legal agreements from another
website. After all, it's there for the taking. Right?
Wrong! For starters, it may be copyright infringement to copy the
other guy's documents without permission. That's reason enough not
to do it.
The other reason is that just as with most things... one size does
not fit all. You should realize that each ecommerce business is
unique. The other guy's policies regarding the collection, use,
sharing, storing, and security of customer data most certainly will
not match yours.
Additionally... the other guy's assumptions may be different.
For example, the other guy's site may not incorporate blogs, forums,
or chat rooms. If your site does incorporate a blog, then his documents
will not have the DMCA notice (and you will not qualify for the
"safe harbor" from copyright liability; you'll be liable
without even knowing it). Even if his site incorporates a blog,
do you want to bet that it has the DMCA notice in proper form?
Another example... I recommend that you assume
that you will need broad rights to collect and use passive information
from site visitors, so I recommend that you reserve broad rights
to collect passive information from them - even if you do not actually
utilize all the methods you reserve rights for at the outset, you
probably will later - if the other guy's privacy statement does
not make the same assumption, and only reserves rights for a relatively
narrow range of collection methods, you may be in breach of your
Finally, your website disclaimers and documents and the other elements
of website compliance must work together as a system, so documents
are not interchangeable.
Registration Form and to your disclaimers,
over to your customer agreement where they become a part of a
especially for personal information transferred from users located
in the European Union,
and so on.
In summary, do it right. Don't cut corners with something so important
as your website content and website documents. Use your own content,
documents, policies, and rules for your website.
Only then will you have the confidence and peace of mind that you
will not be faced with a demand letter, or worse -- a lawsuit --
from the content owner.
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.