If your site allows visitors to post digital files or
comments (e.g. in an online blog, as well as in a forum or
chat room), you could be held liable for copyright
infringement if any of their postings infringe the rights
of another person, even if you are unaware of the
infringement. Under general copyright principles, you would
be strictly liable for their copyright infringement, even
if you are "innocent".
You could also be liable for defamatory statements posted
by bloggers.
The Playboy Case And Copyright Infringement
A good example of an "innocent infringer's" liability that
occurred before the enactment of Digital Millennium
Copyright Act (DMCA) is the case of Playboy Enter., Inc. v.
Frena, 839 F. Supp. 1552 (M.D. Fla. 1993). In this case,
Playboy alleged that the defendants who operated a bulletin
board service (BBS) were liable for copyright infringement.
Subscribers to the defendants' BBS had illegally taken
copyrighted photos owned by Playboy and uploaded them onto
the defendants' BBS.
The court found the defendants liable for copyright
infringement, despite the fact that the defendants did not
upload the photos (the subscribers uploaded them), and the
defendants were unaware of the presence of the infringing
photos until the lawsuit was filed.
The court stated: "...intent or knowledge is not an element
of infringement, and thus even an innocent infringer is
liable for infringement ...".
The DMCA, enacted in 1998, provided a "safe harbor" so that
this harsh result can be avoided, but service providers
must take affirmative steps to qualify for it... or else
you will suffer the same harsh fate as Frena.
To qualify for the DMCA "safe harbor" from strict copyright
liability, you are required:
* to post a specific notice on your site (Terms of Use);
and
* to file the DMCA Registration Form with the US Copyright
Office.
Liability For Defamatory Statements
In addition to liability for the copyright infringement of
bloggers, another pitfall to avoid if you permit visitors
to post to your site is liability for their defamatory
comments about another person, a competitor, or another
product.
Defamation is an intentional false communication, made
either orally or in writing, published to a third party,
which injures another person or company's good name or
reputation.
While it is clear you will be liable for defamatory
statements posted by you or your employees on your site,
what about defamatory statements posted by bloggers? Will
you be liable?
Statements which consist of pure opinion are not
actionable... however, merely stating that a statement is
pure opinion does not make it so. For example, a law school
professor was awarded $3 million in damages arising out of
defamatory statements published on a student's site.
Online defamation may occur in the context of product
reviews where strong statements are posted such as "do not
buy this product because it will not perform as advertised".
In addition, actionable defamation may occur where a site
publishes untrue promotional statements about a person or
company. For example, in one recent case, the Wall Street
Journal was sued by the Harrods department store for
publishing the statement that Harrods was the "Enron of
Britain".
Congress came to the rescue of "interactive computer
services" in 1996 with subsection (c) of the Communications
Decency Act which provides: "No provider or user of any
interactive computer service shall be treated as the
publisher or speaker of any information provided by another
information content provider." 47 USCA Sec. 230(c)(referred
to below as "Section 230").
Section 230 was intended to overrule prior case law which
routinely held that online providers were liable as
publishers and speakers for third party content. Now, under
Section 230, absent an affirmative showing by a plaintiff
that an online service provider is the author of a
defamatory message, email, or post, the provider should
almost always avoid liability for defamation. In other
words, if you or your employees are the authors of
defamatory statements, you'll still be liable, but if your
website visitors are the authors of defamatory material,
you won't be liable.
A word of warning about another pitfall -- be careful in
assuming an obligation to monitor messages, email, or posts
contributed by your site visitors or in exercising
editorial control over them. If you assume an obligation to
monitor, or if you maintain editorial control, and if you
fail to screen out defamatory statements, you may be
liable, despite the protections of Section 230.
For this reason, your Terms of Use should clearly state the
extent to which you exercise editorial control, if at all,
over messages, email, or posts of site visitors. And it's
always best to reserve the right to monitor postings, but
not the obligation to monitor.
Conclusion In summary, if you have a blog, take the steps
discussed above that are required to qualify for the DMCA
"safe harbor" from copyright infringement. Ensure that that
your employees do not post defamatory statements on your
blog, and affirmatively disclaim any obligation to monitor
posts by bloggers.
----------------------------------------------------
Chip Cooper is a leading intellectual property, software,
and Internet attorney who advises software and ecommerce
businesses nationwide. Chip's easy and affordable online
contract drafting service coordinates website contracts
such as Terms of Use, Privacy Policy, Subscription,
Membership, and SaaS agreements. Visit Chip's
http://www.digicontracts.com/ site and download his FREE
report, "12 Sure-Fire Ways Your Website Can Get You Sued".
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