Copyright infringement occurs whenever copyrighted material is copied from or posted to a website without authorization from the copyright owner. This section discusses the various ways that information can be transferred between your site and its users and the copyright conflicts that may arise with each.
Posting involves a user sending information from the user’s computer to the website (“uploading”). Once posted, others can view or copy the material. If your site does not offer users a chance to post material, you can skip this section.
While the person who uploaded the material is the actual infringer, whoever maintains the site can be held liable for allowing the material to be posted on the site. As with any unauthorized material, the wisest approach to dealing with an unauthorized upload is to remove it quickly or disable access to it pending resolution of the dispute.
A site that permits uploading of material can post a notice prohibiting any unauthorized activities and require that perpetrators pay for any damages caused by such activities. The notice should be placed prominently so that persons performing uploads will see it. Alternatively, the site may include a “Click to Accept” agreement (often called a click-wrap agreement) setting forth similar terms. A click-wrap agreement is a page or window that appears before the user is allowed to perform a certain function (in this case, an upload) that states the terms of an agreement. The user will not be allowed to proceed until he or she has clicked a box that indicates that the user has read and accepts the agreement.
Below is an example of a “Click to Accept” agreement intended to prohibit unauthorized postings.
User agrees not to post:
any materials protected under copyright, trademark, or trade secret laws unless with the express authorization of the owner; or
any material likely to defame or invade the privacy of any individual.
User agrees to indemnify the owners of the site and their affiliates and employees from any liability (including attorney fees) related to User’s violation of this agreement.
CLICK TO ACCEPT
Unfortunately, notices and “Click to Accept” agreements are not enforceable in all states. And, as a practical matter, a notice or agreement requiring a person who commits an illegal activity to pay your attorney fees is worthless if the person has no money. Nevertheless, it’s worthwhile to include some form of notice or “Click to Accept” agreement on your website. It may deter some users from making illegal uploads, and it may help to show your diligence in trying to prevent them.
Taking Information From a Website
Just as users can sometimes post information onto a website, a user may — in the reverse process — take material from the website and transfer it to the user’s own computer. This is typically done either by downloading or by copying and pasting. Many sites are set up for users to download material. Shareware sites, for example, allow users to download software they want by clicking on a downloadable file, which will then be transferred onto the user’s computer. Another way of obtaining material from websites is to select text, copy, and paste it into a word processing document on the user’s computer. Strictly speaking this is not downloading, but the effect is the same. The user has obtained material from the website and copied it onto his or her own computer.
If you don’t offer material to download at your site, your main concern isn’t whether you’ll infringe someone else’s copyright, but whether users will copy your material without your permission. Particularly if your site contains copyrightable works by outside authors — for instance, if you publish a Web magazine — you’ll want to do everything you can to prevent users from unauthorized copying of the material. One attempt at deterrence (though not necessarily an effective one) is to display a copyright notice prominently on some or all of your Web pages, clearly stating that the material is protected by copyright.
To deal with the fact that many users may copy information anyway, you can include a prohibition on any commercial use of the material in your copyright notice. In addition, you can require that the copyright notice be included with the material, so that anyone who reads it will know who created it. Many webmasters are willing to accept some limited copying by users for personal use, especially if the copies show who originally generated the material.
If you take this more liberal approach, make sure that any contributors to your site who may retain copyright in their work understand and accept your policy. Otherwise, if they later discover that their article was copied, they might sue you for allowing their work to be infringed.
The concept of unauthorized downloading may seem strange, considering that most sites that offer files for download are obviously consenting to the practice. However, even if downloads are specifically allowed from your site, you may still have concerns over unauthorized uses of the downloaded material. For instance, if you offer free clip art for download at your site, you may want to prohibit users from selling the clip art and limit their use to personal use. If the user violates the restriction, you may be able to sue for breach of contract. This approach has been successful in disputes based upon clip art and stock photos. Even if the agreement is not enforceable, its presence may defeat a claim of innocent infringement by the user.
A sample downloading restriction appears below. You can post it as a notice displayed where a downloader would clearly see it or implement it as a “Click to Accept” agreement.
User agrees that the material provided for downloading is to be used solely for personal purposes such as on a home computer and may not be reproduced, displayed, or distributed for any commercial purpose.