B. Transferring Information to and From a Website

Copyright infringement occurs whenever copyrighted material is copied from or posted to a website without authorization from the copyright owner. This section discusses the various ways that information can be transferred between your site and its users and the copyright conflicts that may arise with each.

1. Posting Information on a Website

Posting involves a user sending information from the user's computer to the website (sometimes referred to as "uploading"). Once posted, others can view or copy the material. If your site does not offer users a chance to post material, you can skip this section.

EXAMPLE: A member of a discussion group posts a chapter from a John Grisham book to the group's chat room on the Web, making it available for others to copy.

While the person who uploaded the material is the actual infringer, whoever maintains the site can be held liable for allowing the material to be posted at the site. As with any unauthorized material, the wisest approach to dealing with unauthorized uploads at a site is to remove it quickly or disable access to the material pending resolution of the dispute. A site permitting uploading of material can post a notice prohibiting any unauthorized activities and require that perpetrators pay for any damages caused by such activities. The notice should be placed prominently so that persons performing uploads will see it. Alternatively, the site may include a "click to accept" agreement (often called a clickwrap agreement) setting forth similar terms. A clickwrap agreement is a page or window that appears before the user is allowed to perform a certain function (in this case, an upload) which states the terms of an agreement. The user will not be allowed to proceed until he has clicked in a box to indicate he has read and accepts the agreement.

Below is an example of a "click to accept" agreement intended to prohibit unauthorized postings.

statesWebsite notices – absent some sign of a acceptance by the user -- may not be enforceable in all states although â€�click to acceptâ€� agreements are generally enforceable throughout the U.S.   As a practical matter, however, a notice or agreement requiring a person who commits an illegal activity to pay your attorney fees is worthless if the person has no funds. Nevertheless, it's worthwhile to include some form of notice or "click to accept" agreement on your website. It may deter some users from making illegal uploads, and it may help to show your diligence in trying to prevent them.

2. Taking Information From a Website

Just as users can sometimes post information onto a website, in the reverse process a user may take material from the website and transfer it to the user's computer. This is typically done either by downloading or by copying. Many sites are set up for users to download material. Shareware sites, for example, allow users to download software they want by clicking on a downloadable file, which will then be transferred onto the user's computer. Another way of obtaining material from websites is simply by selecting text, copying and pasting it into a word processing document on the user's computer. Strictly speaking this is not downloading, but the effect is the same. The user has obtained material from the website and copied it onto her own computer.

EXAMPLE: A visitor to a Nirvana website that posts unauthorized copies of Kurt Cobain lyrics copies them and saves them in a Microsoft Word document on her computer.

a. Unauthorized Copying

If you don't offer material to download at your site, your main concern isn't whether you'll infringe someone else's copyright, but whether users will copy your material without your permission. Particularly if your site contains copyrightable works by outside authors--for instance, if you publish a Web magazine--you'll want to do everything you can to prevent users from unauthorized copying of the material. One common method (though not necessarily an effective one) is to prominently display a copyright notice on some or all of your Web pages clearly stating that the material is protected by copyright.

To deal with the fact that many users may copy information anyway, one option is to accept this fact and include in your copyright notice a prohibition on any commercial use of the material. In addition, you can require that the copyright notice must always be included with the material, so anyone who reads it knows who created it. Many webmasters are willing to accept some limited copying by users for personal use, especially if the copies show who originally generated the material.

EXAMPLE: Nolo.com, the publisher of this book, maintains a website with extensive selfhelp legal information. Since Nolo's goal is to empower people to take care of their own legal affairs, it is willing to accept some copying of the material at its site, with some limitations. Its copyright notice, which can be accessed from nearly every page, reads in part as follows:

If you take this more liberal approach, make sure that any contributors to your site who may retain copyright in their work understand and accept your policy. Otherwise, if they later discover that their article was copied, they might sue you for allowing their work to be infringed.

b. Unauthorized Downloading

The concept of unauthorized downloading may seem strange, considering that most sites that offer files for download are obviously consenting to the download. However, even if downloads are specifically allowed from your site, you still may have concerns over unauthorized uses of the downloaded material. For instance, if you offer free clip art for download at your site, you may want to prohibit users from selling the clip art, and limit their use to personal use. If the user violates the restriction, you may be able to sue for breach of contract. This approach has been successful in disputes based upon clip art and stock photos. Even if the agreement is not enforceable, its presence may defeat a claim of innocent infringement by the user.

A sample downloading restriction appears below. You can post it as a notice displayed where a downloader would clearly see it, or implement it as a "click to accept" agreement.

Copyright © 2007 Nolo

Getting Permission
by Attorney Richard Stim
A comprehensive, up-to-the-minute book on securing the use of copyrighted images, text, music and more.
More Info | Get this book

Web & Software Development: A Legal Guide
by Attorney Stephen Fishman
Find the jargon-free legal information and easy-to-use legal forms you need to protect your rights as a web developer or software creator.

More Info | Get this book