Websites: Who Owns Yours? · 2018-05-03 · pass off another's work as one's own. For instance, one could tell the reader to click ... • 47 U.S.C. § 230 states that websites are
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• The most straightforward case is called "deep linking," which refers to placing a link on your site that leads to a particular page (other than a homepage) within another itsite.
• Example: referring to a page’s FAQ page rather than its homepage.
• Some website owners complain that it steals traffic or disrupts the flow of their website.
Deep Linking
• From Ticketmaster v. Tickets.com opinion:Hyper linking does not itself involve a copyright violation since no copying is involved. The customer is transferred to theinvolved. The customer is transferred to the particular genuine web page of the original author. There is no deception in what is happening.
• We have found no court that has held that deep linking to another website constitutes copyright or trademark infringement.
Inline Linking (Embedding)
• Inline linking involves placing a line of HTML on your site that so that your webpage displays content directly from another site.
• For example, many bloggers embed videos from YouTube on their blogs to illustrate a point or initiate discussion. g p
• While there is some uncertainty on this point, a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material.
• However, one should not use “framing” to make it appear that the content is owned by the linking site.
• The situation changes when you knowingly link to works that clearly infringe somebody's copyright, like pirated music files or video clips of commercially distributed movies and music videos.
• In this situation, you might be liable for what is known as "contributory copyright infringement." Contributory copyright y py g g y py ginfringement occurs by "intentionally inducing or encouraging direct infringement" of a copyrighted work.
• As long as you do not know that a work infringes someone's copyright, then you cannot be held liable for contributory infringement for directing users to that work. On the other hand, it is not necessarily safe to simply claim that you "didn't know" when the circumstances make it clear the material you link to is infringing.
Miscellaneous Linking Problems
• Passing Off. One can also use a link to pass off another's work as one's own. For instance, one could tell the reader to click here to see some of your best writtenhere to see some of your best written articles, and link to articles written by someone else.
• Defamation. Example: linking to a photograph of a person and claim that they stole your car. The link to the photograph makes it defamation.
• Trademark Infringement. Using the mark of another in such a way as to create a likelihood of confusion, mistake and/or deception For instance that thedeception. For instance, that the defendant's products or services are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by trademark owner.
Trademark Infringement-Metatagging• A company can bury the trademark of
another company within the html code of its website. This way, when a customer enters the competitor’s mark into a searchenters the competitor s mark into a search engine, the company who has participated in metatagging will appear in the results due to the hidden tag. Some metatagsmay be used, but care must be taken to avoid trademark infringement.
Trademark Infringement-Buying Keywords• A company can also purchase search
terms from search engines to give their website a better presence
• Purchasing terms that are trademarks of a competitor can give you a better presence, but many trademark infringement lawsuits have been brought because of this practice so proceed with caution
• 47 U.S.C. § 230 states that websites are not liable for third party content except for federal criminal prosecutions, intellectual property claims, or claims under the Electronic Communications Privacy Act or state law equivalents AllCommunications Privacy Act or state law equivalents. All other claims predicated on third party content are preempted.
• Example: a television station in Southern Mississippi posted an allegedly defamatory article about the plaintiff to its website and allowed reader comments. The plaintiff sued the television station for defamation based on both the article and reader comments submitted in response to the article. The court dismissed her defamation claim based on reader comments per 47 U.S.C. § 230.
Disclaimer on Message Board
• http://www.bravotv.com/message-boards/rules
• Advise that you are not liable for the behavior of third parties.
• State that users are not allowed to defame, and follow up by deleting comments that are irrelevant to your site.
• Be sure to note that there is no expectation of privacy. Some sites claim they will only give out user information if they receive a subpoena.
• Once the subpoena is issued, the internet service provider generally advises the user of the subpoena.
• The user can proceed anonymously in this motion.The user can proceed anonymously in this motion.
• Either the user or the ISP can move to quash the subpoena, as courts have held that ISP can assert First Amendment rights on behalf of its providers.
• Of course, beneficial to ISP to assert this right to keep people commenting on blogs, etc. and using their sites without fear of legal trouble.
Digital Millennium Copyright Act
• Safe harbor provisions protect websites from liability for material posted by their users
• For example, if a user posts a copyrighted picture on a message board
• Failure to strictly comply with the DMCAsafe harbor provisions can increase your liability
Digital Millennium Copyright Act Cont.• Necessary steps to comply with DMCA
– Designate a DMCA agent with the copyright office
– Post the DMCA agent information online
Name address phone number and e mail• Name, address, phone number and e-mail
– Remove Known Infringing Material
– Terminate repeat offenders
– Review all direct monetary aspects of website
– Accommodate copyright owners policing the website
• Insurance triggered when “direct physical loss or damage” occurs
– Most courts have interpreted physical loss or d t i f f h i ldamage to require some proof of physical or tangible damage to the insured’s property
– An insured will need to prove “physical loss”
– A Virginia court has found that computer data constituted a quantitative physical mass
• But see Nationwide Insurance Co. v. Hentz
First Party Coverage Issues Cont.• Loss of Use
– Property damage?
– Again, difference in courts. Some courts have found that physical damage is not restricted to the physical destruction or harm of a computer, but includes loss of use and functionality.
– Most courts have refused to equate the loss of intangible data with physical damage to property.
• Same dispute as with first party coverage. Courts undecided as to whether data is tangible property.
• Insurers will likely have a duty to defend if “property damage” is alleged in the underlying lawsuit, regardless if insured proves tangible property damage.
Third Party Coverage Issues Cont.• “Property Damage”
– Ex: AOL software package caused physical damage to software systems. The court held that the computer data was not “tangible property” because it could not be touched (the policy did not define tangible property, so the court construed it with its plain meaning).
– Ex: Computer tape was lost. Minnesota court held data on tape considered tangible property because wholly integrated with computer tape, which was tangible object.
Third Party Coverage Issues Cont.• Defamation
– Website publishing defamatory statement’s
– One court found insurer did not have to defend because damages of “property damage” or “bodily injury” were defined by an “occurrence”, which meant an accident and the defamation was intentional
• Standard policy forms require the offenses to be committed in the course of advertising
• Several courts have found that a website posting is an advertising activity
Third Party Coverage Issues Cont.• Examples:
– Amazon.com was sued for infringement of patented music preview technology, and a Washington court held that Amazon’s websiteWashington court held that Amazon s website exists for the purpose of promoting products for sale—this is advertising
– An Illinois court held that an insured’s alleged use of a competitor’s trademark on its website provided a sufficient link between the insured’s advertising and the plaintiff’s injury
Third Party Coverage Issues Cont.• On the other hand:
– A Massachusetts court found that where an insured was sued for copyright infringement for advertising a certain publication thefor advertising a certain publication, the information contained on the web page was strictly informational and did not “proclaim the qualities of a product” or engage in wide dissemination of the materials
– Accordingly, found that the alleged offense did not occur in the course of advertising
Third Party Coverage Issues Cont.• Copyright coverage as “Advertising Injury”
– When an insured can demonstrate that it was alleged to have infringed a copyright in the course of advertising the chances ofcourse of advertising, the chances of coverage greatly increase
– Where an insurer tried to claim that the website was not “written or printed”, an Ohio court found that these limitations were nowhere in the policies’ definition of advertisement
Third Party Coverage Issues Cont.• On the other hand:
– In a 5th Circuit case, a company allegedly infringed on copyrighted software that allowed the company to record the identity of callersthe company to record the identity of callers
– The court ruled there was no connection between the copyright claim and advertising activities, as the software program was developed primarily for billing purposes, not advertising
Third Party Coverage Issues Cont.• Trademark coverage as “Advertising Injury”
– Insured's have long sought coverage for trademark liability disputes under the “advertising” coverages of their policies
– For example, insurer had to defend insured after the insured bought the domain name “nissan.com” and sold advertising space to car dealerships
– The insurer argued that nissan.com was only a website address, and not related to advertising
– The 4th Circuit disagreed, and maintained the insured’s domain name led consumers to its website and away from competitors, which equated to advertising