How does copyright infringement apply to the internet

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Skip to main content. Welcome to the website of the Digital Media Law Project. Due to popular demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated. Please check any information you find here for accuracy and completeness. A copyright owner enjoys the following exclusive rights: to reproduce the work in copies to prepare derivative works based upon the work to distribute copies of the work to the public to perform the work to display the copyrighted work and, in the case of sound recordings, to perform the work publicly by means of a digital audio transmission See Rights Granted Under Copyright for more discussion.

In order to bring a successful claim of copyright infringement in the context of copying on a blog or website, the plaintiff must generally prove: That she is the owner of a valid copyright in the work or has the legal authority to bring a lawsuit; That the defendant actually copied the copyrighted work, either by direct evidence of the copying or evidence that shows: a the defendant had access to the original work and the defendant's work is substantially similar to the copyrighted work, or b the defendant's work has a striking similarity to the copyrighted work; and The copied sections of the work are protected by copyright i.

Defenses There are three common defenses available to defendants who are faced with a copyright infringement claim: The work used is not covered by copyright i. The defendant independently created the work herself.

As discussed above, any claim of infringement must involve the defendant's use of an unauthorized copy of the plaintiff's work. Thus, infringement cannot occur in the absence of the defendant's copying the plaintiff's work. Additionally, no provision of copyright law bars another author from independently creating a work that is remarkably similar to another.

The use is a fair use. The doctrine of fair use is the third, and most oft-cited, defense. There is a good essay about this process by Ronald B. One way copies are made is by simply viewing a page on the Internet. Browsers also make copies so you can return to a site faster. This is technically sufficient to trigger the copyright statute. Does this mean that everyone who merely surfs the Internet is liable for copyright infringement and risks being sued?

No, because of Implied Consent. Legal scholars argue that that anyone who posts content on the Internet expects people to visit their site. Downloading content from any web page is the equivalent to making a copy of the content, the same as making copies of a book in the library. It makes sense to presume that by doing so you will infringe the copyright of the author of that content. To comply with copyright law, you must receive permission from the copyright holder before you download any content.

The exception to this is Fair Use. As in copying printed material such as books in the library, you will not need permission if you qualify for Fair Use. The complexity and uncertainty of a Fair Use analysis make it both risky and cumbersome to apply to small projects involving borrowing Internet materials. Some websites expressly give permission to download content. For the most part, if they tell you that you can download from their site, you can.

Frena , 39 the court held that digitized photographs from the adult magazine appearing on Frena's bulletin board service infringed the magazine's public distribution and display rights. The court reasoned that at the end of the exercise, the user had a copy of the work: thus, someone had infringed the reproduction right, either the user or Frena.

It is an interesting question whether Frena might be liable for contributory infringement if the user was the infringer. The court did not deal with the infringement of the reproduction right because it was uncertain whether the operator of the bulletin board system had reproduced the works when they were uploaded and downloaded by users of the system.

Another case confirms that copyright will prevent the unauthorized electronic distribution of software. In Sega Enterprises Ltd. Maphia , 41 the court granted a preliminary injunction to prevent bulletin board services and a bulletin board operator from posting programs extracted from Sega video game cartridges.

The court found that the defendants were liable for contributory infringement because there was "copying" each time the games uploaded onto the bulletin board or downloaded from it. In addition, the court found that the defendant's actions did not amount to "fair use" under the U. Copyright Act because the use of the unauthorized copies would be very damaging to Sega's commercial interest. Quare whether allowing browsing of the works on the bulletin board system also constitute displaying the work publicly.

Religious Technology Center brought actions in Virginia and Colorado for copyright infringement of Church of Scientology texts based on electronic postings. In the January decision in Religious Technology Center v. Lerma , the Federal Court found an individual liable for posting part of the Church's teachings on the Internet. In a pre-trial ruling in the action, the Federal Court denied the plaintiff a preliminary injunction on the ground that the defendant would likely be able to prove fair use.

To avoid transmission delays, the most popular sites are often mirrored copied and stored locally by ISPs. ISPs also act as a conduit for messages between users, the transmission of which necessarilly involves the copying of the message along the way and at the destination's electronic mailbox. Although in some cases they do not create the content, they have ultimate control over what goes onto and through the Internet. Digital versions of copyrighted music cannot be put on the Net without the copyright owner's permission.

The Frank Music Corp. CompuServe Inc. Federal Court on November 29, The files could then be played back through a synthesizer. The plaintiffs claimed that CompuServe knew or should have known copyrighted musical works had been made available through the music forum for copying by the service provider's subscribers. The music forum was neither owned nor operated by CompuServe but was one of thousands of such forums carried by the service provider.

The forum operator warranted to CompuServe that the material did not infringe copyright. Consequently, CompuServe took the position that it was not responsible for infringement because the forum was operated by another party. It argued that copying or distributing originated with users. This raised the question of whether an on-line service operator should be held liable for copyright infringement when it had no knowledge that unauthorized copyrighted works have been made available to its subscribers.

However, the questions raised by the Frank Music Corp. It has been suggested that under Canadian copyright law the transmission of a file containing a musical work over the Internet might be a performance "in public". Since a "performance" must be a visual or acoustic representation of the work, unless the transmission over the Internet is "real-time" and not merely the transmission of a file for later "playing", such activity is more likely to be found to be a communication of the work to the public by telecommunication.

Unless the transmission is permitted, the transmission of a file over the Internet and subsequent "copying" onto a users machine may constitute "authorizing" copyright infringement by the person who transmits the file For an analogy to TV cable companies authorizing infringement, see C. One of the most active litigators in the area of determining the liability of posters and hosters is the Religious Technology Center which enforces the copyrights owned by the controversial Church of Scientology and its founder L.

Ron Hubbard. Issues relating to technology, copyright and the liability of a service provider were considered in the U. Federal Court's pre-trial ruling in Religious Technology Center v. Netcom On-line Communications Services Inc. At a hearing to consider whether the lawsuit should be dismissed against Netcom, the plaintiff made several interesting arguments.

It argued that Netcom was liable for direct copyright infringement since its computer equipment made temporary electronic copies of the material posted to discussion groups as part of the implementation of the discussion group system. It argued that Netcom was vicariously liable for infringement by its subscribers, in the same way that an employer might be liable for infringement by an employee.

Finally, the plaintiff argued that Netcom was liable for contributory infringement because it failed to block access by the critic even after it had received complaints from the plaintiff. In a ruling seen as a partial victory for on-line service providers, the court decided that Netcom could not be found liable based on the plaintiff's first two arguments. The copying that occurred as an incidental part of the discussion group system was held not to be direct infringement.

There was no vicarious liability as Netcom did not benefit financially from the subscriber's actions beyond the payment of a fixed fee. However, the court found that Netcom might be liable for contributory infringement because of its failure to act after notice from the copyright holder that infringement was taking place. The Court stated that a service provider would not be expected to act on a mere allegation but that at some point legitimate notice might compel the service provider to cut off the subscriber's access.

Finding that there was a genuine issue for trial, the court refused to dismiss the lawsuit against Netcom. The case settled on August 2, The terms of settlement were not made public.

The Information Highway Advisory Council Report in September, , recommended that ISPs be liable only if a they had actual or constructive knowledge that the material infringed copyright and b they acted reasonably to limit potential abuses.

Following a recommendation from the Report, Industry Canada commissioned a study to determine who should be liable on the Internet. The page final report , released in March, described the state of the law in content-related liability and liability issues. Content providers want a content tracking and billing system. ISPs want "common carrier" liability that is, non-liability where they act merely as a conduit for material.

The World Wide Web allows readers to jump from Web page to Web page anywhere in the world by clicking on a link. A link is analagous to a footnote in a standard book in that it gives the location or address of further sources of information that might be of interest to the reader.

Clicking on a URL results in a copy of the destination Web page being sent to the viewer's computer. In the Shetland Islands, competing newspaper publishers are creating new law on the liability of creating links to Web pages owned by others. The Times sued the News for copyright infringement and obtained the equivalent of an interlocutory injunction or temporary restraining order against The News.

An unresolved question is: If a Home page expressly limits access to it or copying of it after passing through another page such as one containing advertising, credits or introductory statements does creating a link to that page constitute inducing and procuring copyright infringement?

Shrinkwrap licence agreement can protect databases that are not protected by copyright. In ProCD v. The package bore a copyright notice and stated that the use of the data was subject to the "enclosed licence agreement". The licence agreement was printied in full on the inside of the User Guide, on each CD ROM and on the screen when the software is in use. The material offered to allow the purchaser to return the product for a refund if they could not agree with the terms of the licence. Zeidenberg used the ProCD database of telephone numbers and wrote his own software program which permitted searches of the database.