Websites: Five Ways to Stay Out of Trouble

This section provides five simple rules for your website.

Assume It’s Protected

As a general rule, it is wise to operate under the assumption that all works are protected by either copyright or trademark law unless conclusive information indicates otherwise. A work is not in the public domain simply because it has been posted on the Internet (a popular fallacy) or because it lacks a copyright notice (another myth). For information on these and other public domain issues, see Chapter 8, “The Public Domain.”

Read Click-Wrap Agreements

Do not assume that clip art, shareware, freeware, or materials labeled “royalty-free” or “copyright-free” can be distributed or copied without authorization. Read the terms and conditions in any “Click to Accept” agreements (often called click-wrap agreements) or “Read Me” files ordinarily accompanying such materials to be certain that your intended use is permitted. One company that failed to honor the terms of a click-wrap agreement was found liable for illegally distributing three volumes of software clip art. (Marobie-Fl, Inc. v. National Association of Fire Equipment Distributors, 983 F.Supp. 1167 (E.D. Ill. 1997).)

Remove Unauthorized Material

If someone complains about an unauthorized use on your website, remove the offending material immediately. In the case of unauthorized uploads, downloads, or links, the webmaster should disable access to the offending material or link. This is not to imply that you should cave in to every complaint. However, you should remove the material for the period during which you investigate the claim and, if necessary, consult with an attorney. Attempts to “contain” the damage will likely help your case should it find its way into court. Continuing to use the offensive material after being notified may aggravate the claim and the chances of your being found liable—and increase the amount of damages you may have to pay.

Removal of infringing material is also an element of the Digital Millennium Copyright Act (DMCA), a 1998 law establishing that an Internet Service Provider (ISP, a company that provides Internet access to individuals and businesses) can avoid liability by following certain rules, including speedy removal of infringing material. You can read a summary of the DMCA on the U.S. Copyright Office website, at www.copyright.gov/legislation/dmca.pdf.

Investigate Claims Promptly

If someone complains about an unauthorized use, investigate the claim quickly and seek evidence of copyright ownership and validity from the complaining person. The webmaster can verify the facts through copyright research (see Chapter 13, “Copyright Research”). The webmaster must also investigate the transfer of the infringing material, if any, to and from the site. If copies were downloaded, how many and to whom? If copies were uploaded, by whom?

Below is a sample letter that you can adapt and use in response to a claim of infringement by your website.

When in Doubt, Seek Permission

Many webmasters manage personal websites or sites for small organizations such as a local tennis team. Do all of the rules on copyright and permissions apply to these intimate or personal uses? For example, is permission needed to reproduce a photo taken by a club member, a friend, or a relative? The short answer is: “Legally, yes, practically, maybe.”

Copyright protection extends to any original work regardless of who created it, and permission is required for reproduction, display, or distribution of the work. One of the main reasons for acquiring permission is to avoid a lawsuit. If the webmaster is confident that a friend or family member has consented to the use, the concern over a lawsuit diminishes, as does the need for a formal written permission agreement. Oral consents are valid, although sometimes difficult to prove.

But, if you are in doubt about a use, always seek a written permission, even if the material comes from a friend or relative. Formal permission agreements are provided online at Nolo.com (see the appendix for the link). However, in cases of cooperative friends and relatives, an informal release can be used, such as the following sentence:

I am the owner of rights to

[Title of work]

and authorize its display and reproduction on the

[name of the website]

website located at

[insert URL for site]

for a period of

[insert lenght of time]

If you want to include additional items in the agreement, such as a requirement that a credit line for the work appear on the site, you can add them to this brief agreement.