“Technology,” as the old saw goes, “moves faster than the law.” To but it briefly, when the universe of what is possible expands daily, the gatekeepers of what is permissible—derived from intricate legislation and the accretion of factually analogous case law—simply can’t keep pace.
No aspect of legal development is more excruciatingly slow by comparison to the hurtling pace of technological innovation than with regard to copyright. However, certain bedrock elements of U.S. copyright law have been applied as consistently to wholly digital mediums as to page and canvas.
Generally speaking, the owner of a United States copyright has the exclusive right to reproduce, display, produce derivative works based upon, perform, and distribute the copyrighted work. See Copyright Act, 17 U.S.C. § 106. By extension, the copyright owner may license one or more third parties to reproduce or display a copyrighted work, or they may refuse permission outright.
In no circumstance, however, may a third party reproduce or display the copyrighted work without the copyright owners’ consent, irrespective of whether or not the copyright owner charges a fee for access to the work—or whether the technological means exist to reproduce and display the work with just a few swipes and clicks. Boil away the jargon and doctrine and you’re left with a neatly practical takeaway: do not copy images, videos, or other materials appearing on a third party website and paste them to yours without permission from the copyright owner.
As set forth above, digital materials appearing on the web are works eligible for copyright protection. As an initial matter, U.S. copyright law states that a work must be fixed in “tangible medium of expression”—basically, the work must be capable of being viewed by virtue of a machine or process.
Reproduction on a website surely qualifies. Moreover, as stated, the mere fact that an image, video, or text may be capable of reproduction by copying and pasting absent the approval of the copyright owner does not mean that it is legally permissible to do so. Put it another way—just because your operating system allows it does not mean the law approves it.
It’s easy to regard the unlicensed reproduction of an image or other device posted on a website accessible to the public—particularly when not cordoned off by a paywall or other barrier to entry—as a piddling concern. But violations of U.S. copyright law, however slight they may seem, may be subject to severe penalties, including both injunctive relief and financial damages. Moreover, in certain circumstances a rights holder may be entitled to seek statutory damages for each unsanctioned reproduction—fixed amounts not lower than $750.00 per work, but inflating to as high as $150,000 per violation in the case of willful infringement. See 17 U.S.C. § 504(c).
Thus incentivized, lawsuits based on the unlicensed reproduction of online image are metastasizing throughout U.S. courts. By way of example, Law360 reported just this week that a single New York-based law firm filed “a whopping 97 new suits in just the first three months of [2017] … overwhelmingly filed on behalf of photographers over the unauthorized use of their images, like a suit that photojournalist Todd Bigelow field in March over the appearance of his immigration image on conservative website Breitbart News.” Bill Donahue, “The Firms Filing the Most Copyright Cases,” April 21, 2017. Plainly, rights holders take the matter of unauthorized digital reproduction quite seriously, and we would be well served to do the same.
Operators of websites, apps, and internet services should be even more leery of online infringement concerns, as under certain circumstances, their users may subject them to liability stemming from unauthorized reproduction and display of copyrighted work. Given the ease and prevalence of the practice of digital reproduction, Congress, in an effort to stave off a certain barrage of litigation aimed at the operators of online service providers that permit third party users to post content—including infringing content—established the Digital Millennium Copyright Act (“DMCA”). The DMCA is best noted for its “safe harbor” provision, which limits the liability of online service providers for copyright infringement committed by their respective users. See 17 U.S.C. § 512. The DMCA safe harbor structure permits a copyright owner to put a website or other provider on notice that an infringing reproduction has been posted to their site or service. Once notified of the potential infringement, the website or service must take down the infringing material, unless the user that posted the materials presents arguments as to why their use was non-infringing. If the website or service does not respond to the claim of infringement, it may face liability itself.
To that end, service providers are encouraged to create and publish takedown policies, and to establish rigorous procedures for evaluating infringement claims. Such practices must be quite robust—in an October 2016 decision, the Second Circuit Court of Appeals held that an online music service was not in compliance with the safe harbor provisions of the DMCA, and, consequently, liable for copyright infringement where it failed to act on information provided in takedown notices identifying obvious repeat infringers. The decision brings to high relief the burden shouldered by providers—a responsibility ignored at their peril.
Yes, technology hurtles forward, and the law struggles to keep pace. But at least one tried and true rule applies as comfortably to the virtual world as it does the actual—ask permission before you take someone else’s stuff.