Why Would a Website Owner Require Users to Agree to a License for Copyrighted Material?

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.