Interview With Richard Chapo
There are a lot of legal things to consider when you're starting a website. Your site can be taken down at any time, and there are government organizations to consider, too. I had a chat with Internet lawyer Richard A. Chapo, Esq. to find out what you need to know about setting up any kind of Internet site. He had a lot to say on the topic:
Interview With Richard Chapo
Q: What is the DMCA?
A: The DMCA is an abbreviation for the Digital Millennium Copyright Act of 1998. The DMCA is one of a number of laws passed in the late 1990s in the United States designed to apply traditional fields of law to the Internet while not harming the free speech elements of the web. In this case, the law attempts to address how to deal with copyright infringement claims related to electronic gadgets such as phones as well as infringement claims related to content uploaded to user generated content sites such as Facebook, Twitter, YouTube, forums and other sites allowing members to upload content.
Q: Can a web hosting company legally take down a site? Even if someone has paid to host that site?
A: Yes. Not only can the hosting company take down a site, they are automatically required to do so under the DMCA if a copyright infringement takedown notice is filed. Whether a customer has prepaid for the hosting is not a factor in any manner.
Q: Are there any circumstances where a web hosting company doesn’t have the right to take down a site?
A: A web hosting company should detail the right in their terms of service. If the company failed to include such language and also failed to follow the qualification requirements of the DMCA [establishing and publishing a DMCA policy on the site, registering a DMCA agent with the Copyright Office, creating a repeat infringer policy, etc.], then it may well run into difficulties.
The determination would depend upon the state the legal action was brought. Having said this, a web hosting company that failed to use proper terms and comply with the DMCA is a web hosting company that is probably not going to be around for long regardless.
Q: What constitutes copyright infringement on the Internet? Does this apply to just words or images and video too? Is it enough to link back to the original content, or to provide an author credit?
A: Copyright infringement is the unauthorized use of a “work” whether on the internet or offline. “Works” include original works of artistic expression in a fixed form. This definition is interpreted broadly to include videos, photographs, audio recordings, text, software code and a host of other items.
Copyright provides the owner with the right to reproduce the work and distribute it. For example, I would have the right to republish this answer because it is a fixed work I have created. If we were chatting face to face, there would be no copyright because the work would not be in a fixed form.
With infringement, someone else is distributing the work without the consent of the copyright holder. The classic example online is people copying and distributing music without the consent of the artist, or more appropriately, the record company in question.
There are defenses to copyright infringement claims. The accepted list is:
- Criticism and commentary – Showing a movie sample when doing a review of the movie.
- News reporting – References from the work as part of a legitimate news story. Citing passages from the book in a news report titled “Is 50 Shades of Grey Obscene?”
- Research and scholarship
- Nonprofit educational uses – Teacher copies a few pages of a famous book and distributes to students for discussion.
- Parody – Saturday Night Live spoofs of various movies, songs and books.
If there is one area that is abused with copyright law, it is the mistaken belief that linking back to an original work is sufficient to escape a copyright claim. In and of itself, a link is not sufficient unless it is tied into a fair use defense or license to use the work.
For example, I see a television episode I love. I copy it and post it to YouTube. I include a statement crediting the episode to the television channel in question and linking to that channel. There is no fair use defense here, so the link and mention of the true copyright owner means little.
I should note that simply linking to another site does not constitute copyright infringement. If you write a blog and link to an article on another site you believe is well done, there is no infringement.
Q: Is it ever okay to copy content or take a photograph or video from another site? Are any sites considered “free content” sites, or do all sites come with some terms? What about government sites?
A: Yes. Any fair use situation is sufficient. Also, you can often look for Creative Commons licenses to find free content. In fact, the license of any site should contain language detailing if you can use content found on the site. Many allow it.
As for government websites, the common belief is there is no copyright protection for any of the content on said sites. This would effectively mean one could copy and republish anything off a government site without consequences.
This belief is only partially true. Initially, this rule only applies to websites published by the government of the United States. It may not apply to government sites in Canada, the EU and other locations. A person considering taking this step should check with counsel in those jurisdictions.
Even if the website in question is published by the United States, it is important to realize there may still be copyrighted content on the website. While content created by a government employee is not protected, a good bit of content on such sites is created by independent contractors hired by the government agency. This content is still protected in many cases. Individuals should contact the agency for clarification and permission to use the content. Such permission should be given in writing and saved on the offhand chance a dispute arises down the road.
Q: What can a person do if a site is suddenly shut down due to copyright problems? What are the first steps to take?
A: The person needs to quickly evaluate why the site was taken down. The complaining party is required to identity the allegedly offending content when filing the complaint. This content should be reviewed and an evaluation made as to whether the complaint is credible. Frivolous complaints are common as there really is little risk associated with making them.
If an evaluation reveals no infringement is occurring, a counter-claim should be considered. This claim is filed with the hosting company who then forwards it to the person claiming the infringement. That party must then determine whether it wishes to move forward with a formal lawsuit. In this way, the counter notice essentially is a method for calling the bluff of the complaining party. The potential downside, of course, is that party may actually file a lawsuit for copyright infringement.
Q: Do copyright laws apply cross-border (if I post a photograph that belongs to someone in the U.S., does this apply to my Canadian website)?
A: This is a very problematic area of the law. There is no single international copyright law and this leads to a host of different rules regarding copyright. In the United Kingdom, for example, the issue of “moral rights” associated with copyright is a major issue. It is barely mentioned in the copyright law of the United States.
In an effort to resolve these conflicts, various countries have entered into various treaties. If any thing, this has made things even more confusing. If a website has the budget, it will hire an attorney who will identify all the different laws applicable to the site and map out compliance requirements for each. For sites with smaller budgets, the approach is typically to ask the attorney to simply restrict the review and compliance procedures to the intended target market.
As for the U.S. – Canada copyright law issue, Canada has a national copyright law that applies to Canadian situations. If anything, Canadian copyright law is tougher because there are no fair use exceptions although there are other approaches to allowed use. In a dispute, the law that applies would boil down to where the lawsuit was filed, the nature of the specific claims and interpretations of any conflict of law provisions between the countries as well as treaties applicable to the situation. In short, “maybe.”
Q: Does a web hosting company owe a client monetary compensation when a site is suddenly taken down? How does this work out? Are these terms buried in a contract? Where?
Q: What if a site that hasn’t infringed on copyright laws is taken down? What can a site owner do?
A: The appropriate step is to file a counter notice with the host. The host must then communicate the counter notice to the complaining party. If that party does not respond within 10 to 14 business days, the host should automatically put the site back up.
Q: Why won’t a web hosting company go to bat for clients? Are there any web hosting companies that stand behind clients more than others?
A: A web hosting company is granted immunity from prosecution for the alleged copyright infringement so long as it follows the requirements set forth in the DMCA. One of the requirements is the hosting company automatically take down the contested content. No evaluation of the claim is allowed.
I am sure there are certain hosts who do stand up for their clients when they see an obviously frivolous takedown notice, but I cannot name one for you. The DMCA is simply not set up to encourage taking a stand and those hosts that do risk being penalized for doing so by being dragged into copyright infringement lawsuits.
Q: Is there anything else that you would like to add?
A: There are a couple of topics I would raise.
Copyright law is often a problem for people and sites for a simple reason. They get caught up in the details of what is and is not allowed instead of focusing on one simple step that works more often than not – ask for permission to use the work. Many copyright holders are happy to allow people to use their content if they just ask. What gets copyright holders angry is discovering someone just swiped their content and is using it without permission.
When in doubt, ask for permission!
Note: the photo on this page is courtesy of smlp.co.uk via Flickr Creative Commons
Notice and Notice enacted by Canada on January 2, 2015, as part of The Copyright Modernization Act is rolled out. It contained looholes which don’t please online customers while dealing copyright issues. With this law the ISP’s could send notices to their customers, if any alleged to infriging activity.