We've all been there before.
There's some graphics or content (or even website legal
documents) on the web that you like... there's no copyright
notice associated with it.
You'd like to take it and incorporate it into your site,
right?
It's so tempting, but DON'T do it!
Copyright Infringement Issues
Under the US Copyright Act, there is a principle some refer
to as the "rule of automatic copyright". This rule provides
that once an author or artist:
* creates a work of authorship (text, graphics, content),
* that is fixed in a tangible medium of expression (can be
perceived by a person even if a machine or device is
required to do so),
* copyright automatically vests in the author or artist
(regardless of whether the work has a copyright notice or
whether it is registered with the Copyright Office).
So, you need to secure the appropriate permissions before
using the graphics or content. Failure to do so, can cost
you dearly.
An illustrative case is the case of Photo Resource Hawaii,
Inc. v. American Hawaii Travel, Inc., No. 07-00134 DAE-LAK
(Dist. Hawaii Dec. 12, 2007). In this case, the defendant
never had rights to the content, and he was ordered to pay
$48,000 in statutory damages, $5,145.55 in attorney's fees,
and $386 in court costs.
The same result is true if you had permission to use the
material, but the permission expires or terminates. Even if
use was originally with permission, use after expiration or
termination will get you sued. In the case of Chase Jarvis
v. K2 Inc., No. CO3-1265Z (W. Dist. Washington Dec. 12,
2003), the defendant was nailed for infringement because
his content license had expired.
Ditto For "Borrowing" Someone Else's Website Documents
You realize that it's past time for you to add the website
disclaimers and documents to make your site legally
compliant.
So, what to do? You consider "borrowing" legal agreements
from another website. After all, it's there for the taking.
Right?
Wrong! For starters, it may be copyright infringement to
copy the other guy's documents without permission. That's
reason enough not to do it.
The other reason is that just as with most things... one
size does not fit all. You should realize that each
ecommerce business is unique. The other guy's policies
regarding the collection, use, sharing, storing, and
security of customer data most certainly will not match
yours.
Additionally... the other guy's assumptions may be
different.
For example, the other guy's site may not incorporate
blogs, forums, or chat rooms. If your site does incorporate
a blog, then his documents will not have the DMCA notice
(and you will not qualify for the "safe harbor" from
copyright liability; you'll be liable without even knowing
it). Even if his site incorporates a blog, do you want to
bet that it has the DMCA notice in proper form?
Another example... I recommend that you assume that you
will need broad rights to collect and use passive
information from site visitors, so I recommend that you
reserve broad rights to collect passive information from
them - even if you do not actually utilize all the methods
you reserve rights for at the outset, you probably will
later - if the other guy's privacy statement does not make
the same assumption, and only reserves rights for a
relatively narrow range of collection methods, you may be
in breach of your Privacy Policy and not even know it.
Finally, your website disclaimers and documents and the
other elements of website compliance must work together as
a system, so documents are not interchangeable. For example:
* your Terms of Use and Customer Agreement relate to your
DMCA Registration Form and to your disclaimers,
* disclaimers that are merely notices in your Terms of Use
carry over to your customer agreement where they become a
part of a binding contract,
* notices in your Terms of Use regarding the location of
your site's servers become critical in terms of your
Privacy Policy, especially for personal information
transferred from users located in the European Union,
* and so on.
Conclusion
In summary, do it right. Don't cut corners with something
so important as your website content and website documents.
Use your own content, documents, policies, and rules for
your website.
Only then will you have the confidence and peace of mind
that you will not be faced with a demand letter, or worse
-- a lawsuit -- from the content owner.
----------------------------------------------------
Chip Cooper is a leading intellectual property, software,
and Internet attorney who advises software and ecommerce
businesses nationwide. Chip's 25+ years of experience
include 20 years as Adjunct Professor of Computer Law at
Wake Forest University School of Law. Visit Chip's
http://www.digicontracts.com site, sign up for his FREE
newsletter, Website Law Alert, and Special Report; also
learn about his "Do-It-Myself" and "Do-It-For-Me" service
options.
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