When the Internet came on the scene, traditional media sources, including newspapers, magazines and television stations, created websites and began posting the content that they were selling to subscribers and newsstand purchasers while laboring to find an Internet advertising model that worked. This process is by no means complete,[1] but along the way, some concepts of copyright law and defamation law have changed slightly from the pre-Internet days. The impact of these changes is not limited to the media.
Lawyers representing media organizations have been required to learn or re-learn copyright law as their clients seek to exercise control over their content and their intellectual property. A recurring headache has been aggregators, people who post content on a subject that they have collected (aggregated) from other sources. There are now untold numbers of aggregators at the local, national and international levels publishing material directed to a particular Internet community. These can take the form of message boards, blogs or sites.[2] All have in common that they rely on a number of sources about the particular topic, including coverage from the traditional media.
Aggregators have raised the vexing question of how much of a particular source’s content can be used consistent with copyright law. This question has, in turn, raised the equally vexing doctrine of copyright fair use. The basic tenet of the fair use defense to copyright infringement is the weighing of four factors, including the amount and substantiality of what was copied to determine basically whether the would-be infringer has transformed the original work.[3] So, if an aggregator uses only the headline and lead paragraph of the original work, is that a fair use?
A somewhat uneasy peace has been declared with perhaps the views of one newspaper’s Internet editor being fairly representative: “As long as they are only using the headline or a small part of the lead and are linking to my site, I’m not going to make an issue of it.” A number of attorneys in the field counsel their clients that as long as a reader has to go to the original story to know or understand the underlying report, and there is a link, it’s probably safe. However, the issue is not resolved.
If an organization does believe that an aggregator or other site is infringing on their copyrighted property, the Digital Millennium Copyright Act (DMCA) provides practical relief. The DMCA protects Internet service providers (ISP) from copyright liability and arms those whose material has been misappropriated with a practical weapon.[4] The copyright holder may send the ISP what is known as a “takedown notice” as described at 17 USC 512(c)(3) identifying the copyrighted material, its Internet location, and a statement of good faith belief that there is no legal basis for the use of the material. The ISP can then take down the material from the site without notice to the poster. In turn, the ISP has a “safe harbor” from litigation for the infringement.
There have been a number of decisions interpreting various provisions of the DMCA. One of the more well-known ones was an action by Universal Music, which sent a takedown notice to YouTube over a mother’s brief, thirty-second home video meant only for family and friends of her very young children dancing to a Prince song. The mother was not amused and filed a counterclaim alleging that Universal Music had violated the DMCA by not conducting a fair use analysis prior to sending the takedown notice. The district court held that there is, in fact, a duty to first conduct a fair use analysis before sending a take down notice or face possible liability under the DMCA.[5] The decision has prompted counsel for ISPs to caution their clients in taking down what they might believe is infringing material on their own initiative.
The protection of content is now being further complicated by the explosion of social media. Media organizations are using social media (Facebook and Twitter are primary examples) both for newsgathering purposes and as tools to interact with their readers. Social media is to some degree uncharted territory. First, there is an increasing expectation that reporters will be using Facebook and Twitter accounts to form bonds with readers and make the newsgathering process more transparent. Many businesses, both media and non-media, are working through the process of deciding whether they should have social media guidelines. If a business decides that it should, there are more issues to consider. Should the company own and administer the reporter’s site? Should the reporter have separate personal and professional accounts? What limits should (or can) be imposed on the reporter’s choice of language, correction of mistakes, or affiliations (such as Facebook’s “likes”)? What limits should be placed on discussion (complaining) about the reporter’s job? The NLRB has rather firmly fixed ideas about the latter subject.[6]
Social media is also a way for the news organization to interact with its readers. Virtually all traditional news organizations have a Facebook page. But, are they making another mistake of now giving away on Facebook what is on the site and thus leaving the Facebook visitor absolutely no incentive to visit the main site? And what about those Facebook Terms of Service in which the news organizations are giving Facebook a non-exclusive license to use anything that is on their Facebook page?[7] Editors seek to place enough content on a site like Facebook to make the story valuable, but not so much that it fails to drive traffic to the main site. One way to strike this balance is to do on the Facebook page what radio has been doing for generations. Instead of posting the entire headline and lead paragraph on Facebook, editors can post a “teaser.” Consider, for example, posting the headline, “Three football players on State U football team arrested in drug bust” along with a few photos and a link to the main site. In contrast, consider using the shorter, more tantalizing, “More criminal problems for State U football,” with a link to the main site. Which approach is more likely to drive traffic to the main site? And what if your content is protected by a paywall when the Facebook researcher clicks through? She might not come back. This is an evolving area with no clear guideposts and will continue to be a focus of media businesses in the coming years.
The Internet has also prompted some changes to defamation law. Just as an ISP can receive “safe harbor” protection from copyright infringement, so can an ISP receive immunity from defamation actions based on content uploaded by third parties. In basic terms, the Communications Decency Act 47 § 230(c)(1) provides that an ISP is not a “publisher” of this third-party content as long as it has not “materially contributed” to the content.[8] This has raised some interesting questions. There is a longstanding First Amendment protection for anonymous speech.[9] Despite efforts to have posters register and identify themselves, there are still legions of anonymous posters out there, some of whom say very nasty and defamatory things about other people or businesses. Suppose, for example, a persistent anonymous blogger has posted that your client has made fraudulent investments in China and that management has misappropriated over $10 million of shareholder value. Suppose further that he is doing this on numerous places on the Internet. If you want to bring a defamation action, this ISP is not liable under Section 230. This means you need to find the poster. Finding these people to sue them can be a daunting task that will require a prospective plaintiff to satisfy some significant requirements. The requirements that are generally applied, although there are some variations, are known as the Dendrite Standard.[10] The Dendrite Standard requires a potential plaintiff to 1) make efforts to notify the anonymous poster, 2) identify the specific statements that are claimed to be actionable, 3) provide evidence that of a prima facie case, and 4) demonstrate that the need for disclosure is central enough to outweigh the right of anonymous speech. While seemingly daunting, the standard has been met in a number of cases.
But is all of this just inside baseball for the traditional media and their counsel? What can an attorney who counsels or represents non-media clients take from this? Here are several thoughts:
Become familiar with the DMCA and its takedown provisions. It’s a straightforward and realistic way to protect your content, and it’s not just the media outlets who are having their copyrights infringed.
Know that one of the most common misperceptions in fair use is that as long as you use only a certain percentage of the work it is fair use. This is not correct. There is no such hard-and-fast standard.
Monitor your content if you want to protect it. In today’s Internet world, you may find it has “gone viral” before you even know it has been taken.
Your employees are almost certainly using social media – probably while at work. Have you considered social media guidelines for your company? You may conclude you don’t need them, but make it an informed decision.
If a blogger posts negative comments about your client or its products and services, think carefully before sending retraction demands, threats of suit, or filing suits. There are responsible bloggers that you can direct such complaints to as you would a mainline media organization. There are also, however, bloggers for whom this would be equivalent to pouring gasoline on a smoldering ember.
If your client’s business includes accepting uploads of third-party information, do you have Terms of Service covering those submissions? It is not unusual for posters to submit material without any ownership or rights in the material.
Before your client uses that great photograph or video on Tumblr, Pinterest, Facebook, or YouTube, remember that just because it’s on social media does not mean it’s in the public domain. At the very least, check the terms of service on those sites.
If your client uses a Facebook site, be sure you explain to them what rights they are giving Facebook in that material. Same goes for Twitter and other sites.
[1] For example, paywalls on the sites of major news organizations are becoming increasingly common. The Los Angeles Times, the Boston Globe, the New York Times and the Wall Street Journal are some examples of publications with paywalls.
[2] Readers probably access aggregation sites on a regular basis. But see, as one example, Google News Reader.
[3] Fair use factors are defined at § 107 of the Copyright Act of 1976 as 1) The purpose and character of the use, 2) the nature of the copyrighted use, 3) the amount and substantiality of the portion used, and 4) the effect on the market. The balancing of the factors is not done with mathematical precision. See, in this regard, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) and Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
[4] The DMCA at 17 USC § 1201 also makes it a crime to break an encryption code used to protect copyrighted material. This is significant, as it does not require that any copying be done.
[5] Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008).
[6] See, for example, http://www.recruiter.com/i/national-labor-board-issues-social-media-guidelines-for-employers.
[8] See, for example, Carafano v. Metrosplash.com, Inc., 399 F.3d 1119 (9th Cir. 2003), holding that Matchmaker.com was not responsible under Section 230 for a false posting of a well-known actress’ name, phone number and statement that she “was looking for a one-night stand.”
[9] Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960).
[10] Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
Published August 16, 2012.
