• Web Sites And Copyright Violations
  • September 11, 2003 | Author: Celeste M. Butera
  • Law Firm: Rivkin Radler LLP - Uniondale Office
  • Under the federal copyright law, a copyright owner who is able to prove that another party has infringed its copyright is entitled to recover either the actual damages it has suffered plus the infringer's profit, or the statutory damages -- up to $150,000 for willful infringement -- provided by the law. The court also may award the copyright holder its attorney's fees and costs. Because copyright owners may be unable to prove actual damages, they frequently seek statutory damages. As a practical matter, however, it is difficult to obtain statutory damages for infringement of an unpublished work.

    Whether a copyrighted work is published or unpublished is often quite easy to determine. The issue is somewhat more complicated when a copyright owner contends that its copyright in its Web site has been infringed. Is a Web site a published work?

    "Publication" is a technical term under the copyright law and is defined as "the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending," or the "offering to distribute copies . . . to a group of persons for purposes of further distribution . . . or public display." The definition also points out that "[a] public performance or display of a work does not of itself constitute publication." To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process.

    In recent years, technological advances have forced the courts to consider the publication requirement in a variety of interesting contexts. For example, last year, the U.S. Court of Appeals for the Ninth Circuit held, in the Napster case, that uploading music files to the Internet for others to copy violated the copyright holder's exclusive publication right. An Ohio court recently determined that posting software on a bulletin board where others could access and download it amounted to publication. And a Florida court has ruled that unauthorized uploading of copyrighted images with the knowledge that the images would be downloaded by other bulletin board subscribers constituted an infringement of the copyright owner's exclusive publication right.

    The common theme running through these decisions is the ability of an Internet user to download a file containing a copyrighted work and thereby gain control of it, that is, to gain a proprietary or possessory interest in the copyrighted work. By contrast, the mere public display of a work of art or the public performance of a play does not constitute publication. That is because a person does not take any sort of possession or control of a copy of a painting or a play merely by viewing it.

    Recently, a federal district court in New York had to decide whether the owner of a Web site created to sell motorized scooters had published the site or had merely displayed it.

    The court concluded that accessing a Web page is not like viewing a painting or watching a play because the visitor not only views the page but also can view -- and copy -- the code used to create it. In other words, merely by accessing a Web page, an Internet user acquires the ability to make a copy of that Web page -- a copy that is, in fact, indistinguishable in every part from the original. Consequently, the court emphasized, when a Web site goes live, it is distributed and "published" in the same way music files in the Napster case were distributed and "published."

    Companies with Web sites should make certain that they register their sites, and modifications to their sites, with the federal Copyright Office. They also should be vigilant in examining competitor sites to determine whether there has been any improper copying or infringement.