A Picture is Worth a Thousand Lawsuits

Sep 16, 2014

A Picture is Worth a Thousand Lawsuits

In many ways, the Internet feels like the Wild West –a near lawless land where anything and everything goes. While the uncensored nature of the Internet offers the freedom needed to explore ideas and generate exciting new social and technological breakthroughs, it can also create problems in the areas of intellectual property and copyright infringement.

The struggle to control the dispersal of copyrighted material on the Internet has resulted in a number of high profile news stories over the last 20 years. Whether Metallica’s public court battle with the music sharing service Napster in 2000 or the recent case of a 25-year old British man receiving a 33 month prison sentence for uploading an illegal copy of the film Fast and Furious 6 online, the battle over copyrighted materials has cost millions of dollars and years in time served.

For many website owners, the threat of copyright infringement online may not come from illegal downloads of mp3s or BitTorrent files, but from the inadvertent use of an image or logo. Using an image found online without knowing its origin can create a number of problems for website owners, and could result in a violation of the Online Copyright Infringement Liability Limitation Act, or OCILLA.

Understanding the law and what protections it offers is key for website owners -whether business or personal – if they want to stay in operation and out of trouble.

A Safe Harbor

As the Internet was beginning to take shape into what we know today, federal lawmakers realized a complex and challenging frontier was about to emerge when it came to protecting copyrighted materials. Not only could materials suddenly be distributed around the world at near instantaneous speeds, anyone with an Internet connection and access to a website could upload copyrighted materials. The speed and ease in which copyrighted materials could be uploaded online made it practically impossible for website owners to actually police this problem.

For example…

Say a popular blog site that allows users to upload content has roughly 6,000,000 images on its serves. If the website had an employee whose sole job was to remove unauthorized copyrighted images by individually examining each uploaded image at say 30 seconds per image, it would take this employee 50,000 hours to examine every image. Working a typical 40-hour week, that employee would finish his or her task in 24 years! Of course during that 2½-decade span even more copyrighted images would be uploaded, meaning the task could never be successfully completed.

Understanding that monitoring images was an impossible task for website owners, but that something still needed to be done, lawmakers passed the Digital Millennium Copyright Act (DMCA) in 1998, which included the OCILLA.

Often referred to as the “Safe Harbor” provision, the OCILLA shields online service providers – a group that includes Internet service providers (ISP) – and other Internet intermediaries from their own acts of direct copyright infringement and any potential secondary liability from the infringement of others. In other words, the OCILLA protects websites from unknowingly selling or publishing copyrighted materials as long as the website owner follows specific protocols laid out in the legislation to avoid prosecution.

At its core, the OCILLA protects website providers from any liability that would normally occur due to the actions of its users.

Following Protocol

To avoid prosecution from the display of copyrighted materials, a website must follow certain protocols in order to qualify for Safe Harbor that include:

  • The website cannot receive any financial benefit from the use of the copyrighted material
  • The website cannot be aware of the copyrighted material or know any facts that would lead the site to believe the material was copyrighted
  • After receiving a notification from the copyright owner or their representatives about a violation, the website must take immediate action – typically viewed as 24 hours – to remove the material in question

As the last protocol is the most relevant to website owners, lets take a closer examination.

Say a website owner posts a beautiful picture of a sunset to the site’s home page that was pulled from a friend’s blog. Unfortunately for the website owner, the image wasn’t owned by the friend and now the site is in direct violation of the DMCA. Since the website isn’t responsible for unknowingly posting copyrighted materials, the original owner of the copyrighted material or their authorized representatives must contact the website owner about their violation, typically by filing a DMCA Takedown Notice. Once the owner has received the notice, the image must “expeditiously” come down from the site, a period usually agreed to mean within 24 hours.

While it’s illegal to fraudulently file a DMCA Notice if not actually the copyright owner, lawmakers understood that some individuals would maliciously use the legislation for their own design. That’s why websites that receive a DMCA Notice can file a Counter-Claim to fight for the right to use the image in question. An estimated 60 percent of all DMCA Takedown Notices actually end up being invalid when reviewed during the Counter-Claim process for reasons that include failing to correctly follow the requirements set forth by the DMCA, mistaking copyright infringement for trademark infringement, or mistaking copyright infringement for defamation. However, if a website fails to remove the image or is found in violation of the Safe Harbor protocols, they could face legal action.

Fortunately, website owners can avoid dealing with DMCA notices by thoroughly vetting any images they upload. Always know the source of an image and never use anything just “found on the Internet.”

A number of websites like ThinkStockPhotos.com or FreeDigitalPhotos.net offer images website owner can safely use, and website owners can of course always upload photos they’ve personally taken.

While the Internet can seem lawless, systems do exist to help police violators of copyright infringement and other laws. Inadvertent copyright infringement may seem harmless, but it could result in serious headaches for your website and business. Avoid costly mistakes by taking the time to understand copyright infringement laws and what steps you need to take as a website owner to protect yourself from litigation.

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