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Mistakes to Avoid in Managing Digital Content - 4/19/2011 -

The growth of the World Wide Web and other Internet technologies raises numerous copyright issues that require publishers to be vigilant about understanding what is free for use and what is not.

By Ken Fanelli

Copyright law hasn’t changed in the digital age, but how we apply it has, contends Michael Graif, Esq., the intellectual property attorney who gave an eye-opening luncheon presentation – "10 Mistakes to Avoid in Managing Digital Content” – to Association Media & Publishing members on March 30 at the National Guard Association headquarters in Washington, DC.

Graif is a partner at Curtis, Mallet-Prevost, Colt & Mosle LLP in New York City. He counsels clients on trademark clearance and enforcement issues, merchandise licensing, publicity and privacy rights, copyrights, digital rights management, domain name proceedings and other Internet-related issues. He has appeared on television and has been quoted extensively in the national and international press to discuss file sharing and copyright issues.

The exponential growth of the World Wide Web and other Internet technologies raises numerous copyright issues, explains Graif, which require publishers to be vigilant against unauthorized uses and distribution of content end users to know what is free for use and what is not. An understanding of the sometimes murky boundaries of copyright law in the digital age can help an association avoid making any one of what Graif calls the most common10 mistakes in managing digital content:

1. It is a mistake to assume that digital and online content is free to be used and modified without permission.

2. It is a mistake to assume that seemingly innocent activities do not constitute copyright infringement.

3. It is a mistake to assume that the rules on fair use for non-digital content are different for digital or Internet content.

4. It is a mistake to assume that mere headlines are not copyright-protected.

5. It is a mistake to assume that facts and ideas, even though not copyright protected, are always free for use.

6. It is a mistake to fail to enforce your rights or to comply with protections under the law.

7. It is a mistake to assume that a particular work contains no copyright management information that attributes the work to the copyright owner or author.

8. It is a mistake to rely solely on the copyright laws, the fair use exception, the Digital Millennium Copyright Act (DMCA) or the Communications Decency Act (CDA) as a defense or protection against infringement claims. Have a back-up.

9. It is a mistake not to consider the use of digital rights management technologies to protect copyrighted works.

10. There is still much confusion over how to treat content on the Internet. In light of this uncertainty, it is a mistake not to be vigilant and aware of the use of digital content – whether you are using someone else’s content or you are the owner of the content.

How to Minimize the Risks

U.S. copyright law is almost as old as the nation itself, and is – in fact – incorporated in Article 1, Section 8 of the U.S. Constitution. The Copyright Act of 1976, which is the federal statute that prevents the unauthorized copying of a work of authorship, also gives copyright owners the right to reproduce the work, prepare derivative works, and distribute copies. The act’s Fair Use doctrine provides a defense to claims of infringement upon these excusive rights of an owner or author.

The nonexclusive factors for a finding of Fair Use include a handful of general standards based on:

· The purpose and character of the use;

· The nature of the copyrighted work;

· The amount of the material used or copied, and;

· The effect of the use on the market for the original work.

Whether an alleged infringement falls under Fair Use protection depends on whether it is used for a commercial or nonprofit education purpose; if it has a "transformative” use or a redistributive use; if it is taken from a "factual” work; or if it is in the public domain or its copyright has expired.

Several recent statutes and the related case law related have dealt with some of the thorny issues due to the "cut-and-paste-and-copy” mentality so common in people’s use of the Internet, the competitive nature of electronic media outlets, and the proliferation of online news aggregators. "Hot News” misappropriation – though it originated from the 1918 Supreme Court case of International News Service v. Associated Press – is a tort claim that has been used with greater frequency in recent years, especially between content providers and online news aggregators. Infringement of the Hot News doctrine goes beyond a traditional copyright infringement claim and extends liability based on using timely and factual information.

Courts have upheld misappropriation claims where the plaintiff generates or gathers information at a cost; the information is time-sensitive; the defendant’s use of the information constitutes free-riding on the plaintiff’s efforts; the defendant is in direct competition with a product or service offered by the plaintiff; and the ability of others to "free ride” on the plaintiff’s efforts would reduce the incentive to produce the product or service and, thus, be substantially threatened.  

The Digital Millennium Copyright Act, enacted in 1998, extended federal copyright protection to Internet content. At the same time, it limits the liability of online service providers for copyright infringement by their users. This "safe harbor” protection has helped defendants avoid court judgments against them.

The ongoing stream of lawsuits, counterclaims, appeals, and pending judgments dealing with copyright infringement lawsuits in this digital age keep acceptable standards uncertain and in flux. To minimize the risks associated with online publishing, Graif counsels, "Seek permission, and get it in writing.” Moreover, he advises:

  • Stay aware of the content you use and the source;
  • Stay aware of your content and how it is being used;
  • Stay aware of the relevant laws as they evolve; and
  • Stay aware of issues involving libel, privacy, defamation, and online anonymity.

Ken Fanelli is the manager of resource development at Club Managers Association of America. He has worked in nonprofit publishing for more than 25 years. Association Media & Publishing thanks him for volunteering to cover this event for our members who were unable to attend.


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