by Jill Hubbard Bowman on July 25, 2010
Sorry for the gap in posts. I’ve been in the Pacific Northwest watching killer whales. Although I’m still on vacation, I wanted to quickly answer a question by a reader in the North who wondered:
Why would a Website owner want to require a Website user to agree to a license in a contract regarding copyrighted material?
Isn’t statutory copyright protection enough?
Does a license provide a legal remedy in addition to copyright infringement?
Good questions. A Website owner may want to require users to agree to a contract that includes a restricted content license because of litigation procedures.
If a Website user copied copyrighted material in violation of the copyright statute and in breach of the licensing terms of the Website’s on-line contract, the Website owner would have at least two causes of action in a lawsuit: copyright infringement and breach of contract.
Why would a plaintiff want two causes of action in a lawsuit?
The elements of proof, required evidence, and damages are different for copyright infringement and breach of a specific contract.
For a breach of a contract:
- It’s easy to sue for a breach of contract.
- A contract can dictate where the litigation occurs.
- By agreeing to a contract, a user can agree to submit to jurisdiction in a remote court where the Website owner resides.
- A contract can also require attorneys’ fees for the prevailing party in a lawsuit for breach of contract.
In contrast, for litigation for copyright infringement:
- A federal copyright registration is required before a plaintiff can file a lawsuit for copyright infringement.
- Statutory damages and attorneys’ fees are only available if the copyright to the work was registered within 3 months of publication and before infringement. Many companies don’t register their works in time and statutory remedies are not an option.
Although in the end you usually won’t get more total damages for multiple causes of action (and damages experts are expensive because the calculation can get complicated), multiple causes of action can help a Website owner win its case.
The information provided in this legal blog is not intended as legal advice and does not create an attorney-client relationship. Please do not submit questions or comments seeking legal advice or submit confidential information through this blog. By communicating through this blog, you understand and agree that the information will not be treated as confidential and the publisher has no duty to keep it confidential.
by Jill Hubbard Bowman on June 28, 2010
Google won a huge victory last week when a federal judge decided that Google was not liable for copyright infringement perpetrated by its YouTube Users.
In 1996, Viacom, the owner of Paramount Pictures and MTV Networks, filed a $1 billion lawsuit against Google alleging that thousands of videos on YouTube violated its copyrights.
Google fought back asserting that as a service provider it was entitled to the safe harbor protection of the Digital Millennium Copyright Act (“DMCA”) and therefore not liable for copyright violations of YouTube users. Google asserted that it had acted expeditiously and removed allegedly infringing materials when notified of the specific material by the copyright owner as required by the DMCA.
Viacom asserted that Google was not entitled to the DMCA safe harbor because it knew that material infringing Viacom’s copyrights was posted on YouTube.
The critical issue was whether Google had met the DMCA’s safe harbor requirements:
Did Google’s general knowledge of possible infringement negate protection?
Courts have been very clear regarding the necessity of strict compliance with the DMCA’s requirements. For a service provider to qualify for safe harbor protection, the service provider must take a variety of actions including:
- designating an agent with the Copyright Office;
- providing and following a copyright infringement notification/take down procedure; and
- a counter-notification procedure.
In general the DMCA states that “A service provider shall not be liable for monetary relief . . .for infringement of copyright . .if the service provider
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;”
The judge decided that the phrases above meant more than general knowledge of the prevalence of infringement. They meant “specific and identifiable infringements of particular individual items.” In short, Google had a safe harbor. The burden to identify and notify the service provider of alleged infringement is on the copyright owner.
The bottom line is that service providers don’t have to actively monitor their sites for infringing content. They may presume user material is not infringing unless notified otherwise. If they follow the DMCA guidelines and act promptly to take down material alleged to be infringing, they may have protection from claims of big damages.
The information provided in this legal blog is not intended as legal advice and does not create an attorney-client relationship. Please do not submit questions or comments seeking legal advice or submit confidential information through this blog. By communicating through this blog, you understand and agree that the information will not be treated as confidential and the publisher has no duty to keep it confidential.
