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Where Copyright Meets the Internet

WHEN ABBIE HOFFMAN wrote Steal This Book in 1970, authors of original works may have objected to the advice, but they at least could take comfort in the fact that someone actually had to go to the bookstore and physically grab the book off the shelf if they wanted to follow Hoffman’s advice. The need for physical proximity to the material limited the risk.

Today, however, your company may spend a year consulting experts and painstakingly developing materials that it hopes will distinguish it from the competition. But if the company posts that material on the Web, anyone anywhere can easily steal it and you won’t even know, because your copy will still be right where you put it, seemingly undisturbed.

Compounding the problem is the fact that many Internet users don’t seem to know that they are violating copyright laws. Copying on the Internet is rampant, including among security companies and security professionals, says Gene Ferraro, CPP. “A lot of people think that just because it’s on the Internet, it’s free,” he says. Ferraro runs a business called KopyWatch, which searches the Internet for identical or very similar blocks of text.

After making sure the sites with the text are separately owned and operated, KopyWatch subjectively determines whether a copyright violation might be at hand. The company alerts all of the site owners of the possible conflict and offers to sell them a report disclosing the closely matching text as well as a copyright-monitoring service. (The firm doesn’t offer legal services; it’s up to client companies to have legal counsel contact the violators if they wish). Ferraro says that more than 300 clients have taken him up on the monitoring.

Although his company’s search feature can identify text matches down to a few words, he says that he searches for matches of at least 35 words or more. And most of what he’s finding contains much longer word-for-word copies.

For companies concerned about competitors or interlopers swiping their online material, attorneys recommend placing copyright notices at the bottom of every Web page and registering copyrights for the site quarterly with the U.S. Copyright Office, to protect the site as it evolves.

Companies would be well advised to copyright their mission statements, their business plans, and any policies or standards or guides in which they have invested time and resources. Otherwise, they may find that someone comes along, sees that work online, and decides simply to appropriate it.

While copyright registration is not compulsory for asserting copyright, it bestows certain benefits, points out attorney John W. Hazard, an intellectual property lawyer and the author of a treatise on copyright law.

For instance, says Hazard’s colleague David Abrahams, registration confers the presumption of ownership and bolsters the claim should your company end up challenging someone’s use of your material in federal court.

Perhaps most importantly, it allows plaintiffs to obtain statutory damages authorized by the copyright act—up to $30,000 for each work infringed, or up to $150,000 per work if the infringement was willful—without having to show the court that they suffered actual harm.

The situation is trickier if the infringer is based outside of the United States and has no physical presence inside the United States, says Erik W. Kahn, an intellectual property lawyer at Bryan Cave LLP in New York. Unless parties in that country are bound to honor U.S. copyright law by treaty, jurisdictional problems may arise, Kahn explains.

If the foreign site is hosted on a server in the United States, however, the victim might be able to get the server firm to remove the offending pages or sue them for damages.

Another issue that companies developing their own products should be aware of is how copyright laws apply to electronic clipping services and newsletters. To what extent can clipping services summarize and use someone else’s copyrighted material?

Generally, copyright law covers expression of an idea, not the idea itself. So as long as a clipping service doesn’t slavishly copy the article, and introduces a degree of originality, it will probably avoid liability. Clipping services should avoid specific language used in the source articles, advises Kahn, who warns that there is no pat formula for compliance. But the more general the summary, the safer.

Even if the clipping service rewrites the ideas expressed in the articles, it could violate a protectable interest if it mirrors the structure of the article. “Clipping services should use their own language and change the ordering of the article,” to avoid that problem, says Kahn. And, of course, he adds, it’s always a good idea to have a lawyer review materials to ensure that they stay within the boundaries of this complicated area of the law.