Intellectual Property – Why “Borrowing” Web Content is a Really Bad Idea

Intellectual PropertyWe'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.


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 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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