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The Internet copyright compromise: Takedown, repost, litigate

Mark Sableman July 10, 2013

All creative expression that is “fixed in a tangible medium of expression” is presumptively protected by U.S. copyright law. And copyright law is strict, with liabilities that often extend much farther than most people understand. Even unintentional, good faith, and nonprofit use of copyrighted works could lead to liability.

Copyright law clearly extends to the Internet, which may even constitute the most important area in which copyrighted works are copied, distributed and used. But, as usual, there are twists as to how copyright applies on the Internet.

The Business Law Basics

Copyrighted material abounds in the digital age, considering that it takes only two requirements for a copyright to come in to being:

  • The content must be creative in some way. Mere facts, basic concepts, standard forms, minimal expressions (like the title of a book) don’t qualify. But practically every other creative effort qualifies. It’s not just Hemingway novels and Picasso paintings; it’s commercial posters, routine business documents, teenage love notes, and even your kid’s crayon drawings.
  • That creative content must be “fixed in a tangible medium of expression.” But that can be anything – from impulses on a magnetic hard disk (your draft e-mail) to pigment on a physical medium (those crayon drawings).

Copyrights spring into existence almost magically when works are created. Think of copyright creation and protection as a three-step process:

  1. Create the work. Your copyright — an intangible personal property right — automatically springs into being as soon as a creative work become fixed in a tangible medium — when pen hits paper, when oil touches canvas, and when you click your camera’s shutter.

  2. Place a copyright notice on the work. You can mark your copyrighted work with a copyright notice, most typically using the word “copyright,” the copyright symbol [©], the year of first publication, and the copyright owner’s name: for example, “Copyright © 2013 Mark Sableman.” A valid notice prevents infringers from claiming an “innocent infringement” defense.

  3. Register your copyright. You can also register your copyright with the U.S. Copyright Office.  Registration is a simple and relatively inexpensive process. (The online application, which costs $35 per work, can be accessed on the Copyright Office website). Registration brings many benefits:
    • It enables the copyright owner to bring infringement suits, although the owner can always register just before bringing suit.
    • A timely registration (one filed within 90 days of first publication, or at least before infringement occurs) entitles the owner to obtain statutory damages from an infringer – i.e, damages presumed even in the absence of proof of actual damage. Statutory damages, which apply per infringed work, come in three varieties:
      • * Normal measure - up to $30,000
      • * Innocent infringement - at least $200
      • * Willful infringement - up to $150,000
    • A timely registration also entitles you to seek attorneys’ fees if you win.
    • Registration is necessary and expected when you are selling or licensing your copyrighted materials .

A valid copyright is a bundle of legal rights, which you can divide up and license in various ways. Ownership of copyrights usually vest initially in the creator of the work — the artist, writer, musician, designer or other creator, but special “work for hire” rules apply in the case of commissioned or corporate works. Copyrights currently last for the life of the author plus 70 years, or 95 years in the case of works for hire.

Violations of copyright are addressed through copyright infringement lawsuits in federal courts. Not all unauthorized uses of copyrighted materials constitute infringement. However, the copyright act specifically recognizes a “fair use” doctrine, an important but hard-to-define defense that is particularly applicable in the cases of research, teaching, and news reporting.

The Internet Law Twist

Soon after popular use of the Internet exploded in the mid-1990s, special issues involving use of copyrighted works on the Internet arose. In the digital age, people frequently upload, download, and share copyrighted materials. The nature and ease of use of the Internet facilitates such activities. Internet intermediaries, like service providers, are in the middle of it. Mr. Uploader can share copyrighted works with Ms. Downloader only because both have Internet access through their respective service providers.

Copyright owners had two paths for fighting this infringement. They could look for, and go after, hundreds if not thousands of uploaders and downloaders. Or they could go after the intermediaries, the service providers whose facilities make the sharing of digital copyrighted works possible.  They took both paths, but for obvious reasons, attention focused on the lawsuits against service providers.

In several critical mid-1990s court decisions, including Religious Technology Center v. Netcom, courts concluded that once service providers were told of copyright infringing activities by their users, they, the service providers, could become liable as well, under established theories of contributory infringement or vicarious liability.

The Internet service provider industry, alarmed at the huge liabilities its members faced, sought from Congress an exemption from liability for their users’ copyright infringements, perhaps akin to the Section 230 exemption they enjoyed from their users’ content liabilities. Congress, however, balanced service providers’ interests with those of copyright owners, to create an elaborate, sometimes complex law known as the Digital Millennium Copyright Act (DMCA).

The DMCA, enacted in 1998, exempts service providers from liability for facilitating their users’ copyright infringements, under special circumstances:

  • First, the service provider must register an agent with the U.S. Copyright Office, so that its clear how to give notice of complaints.
  • Second, if a copyright owner complains about a user’s infringement, the service provider must take down the alleged infringing material. The provider must also give the user notice of the complaint and takedown.
  • Third, if the user insists that the material be reposted, the service provider must do so, but the user becomes susceptible to suit by the copyright owner, in the federal court district of the provider’s offices.

The notice-and-takedown procedure — and other DMCA provisions — make up an elaborate, carefully legislated twist in the law, designed to allow control and enforcement of copyright infringement on the Internet without unduly inhibiting Internet service providers and their essential role in Internet communications and commerce.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at  (314) 552-6103 or msableman@thompsoncoburn.com.