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Posting Third Party Content And Linking



Can I post content I obtain from other sources?

Your ability to post content that you obtain from other sources is limited by the copyright and trademark laws and by the terms of any agreements with the owners of that material, whether contained within a website’s terms and conditions or in a signed contract.

Copyright law protects the owner of copyrighted work from the use of that work by another without permission. Copyright protection is available for a broad range of works beyond traditional novels and paintings, including maps, photographs, test questions and answers, architectural plans, music, games, and cartoons. The or owner of copyrighted material need not have registered the copyrighted with the US Copyright Office even utilized a copyright notice in connection with the material to protect its copyright. Copyright law protects the owner’s rights in the original work as soon as that work is created, although the copyright owner cannot commence a lawsuit for infringement until the work is registered in the U.S. Copyright Office.

Copyright law gives the owner of the copyrighted work the exclusive right to reproduce, publish, perform, display, or create “derivative works” from it. Posting another person’s original material on a website without their permission entails copying, display, publication and/or performance of such work which could constitute an infringement of the owner’s copyright. It does not necessarily help to change or edit the original work, since the modified version would likely be a "derivative work" of the original, which only the copyright owner has the right to make.

Unauthorized posting of a copyrighted work on a website can subject you to “statutory damages,” set by law at a minimum of $750 and a maximum of $30,000 per work that is infringed, based on the court's discretion. In the alternative, a court can award the plaintiff "actual damages", also known as compensatory damages, in the amount of any demonstrable loss suffered because of the infringement. Most copyright owners will choose statutory damages over actual damages because there is less to prove in order to obtain payment.

Intentional (or “willful”) copyright infringement is a federal crime punishable by imprisonment or fines. In addition, if the infringement was “willful”, the court has the discretion to increase the amount of statutory damages up to $150,000 per infringement, and can require the losing party to pay the winner's costs and attorneys fees. Under section 506 of the Copyright Act, if you willfully copy or distribute by electronic means a work with a retail value of between $1,000 and $2,500, you could be imprisoned for up to one year and/or fined; if you willfully copy or distribute by electronic means at least 10 copies or phonorecords of at least 1 copyrighted work, you could be imprisoned for up to 5 years and/or subject to a fine. (www.law.cornell.edu/uscode/17/506.html).

The Digital Millennium Copyright Act, which was designed in part to help prosecute hackers, added criminal penalties for circumventing copyright protection systems or interference with copyright management information. (www.copyright.gov/legislation/dmca.pdf)


Can I link to another site’s content?

Your can direct your visitors to useful information elsewhere on the Internet by providing links to other sites where such information appears. Linking is a way to enhance the usability of a website because it can take a user directly and quickly to something they are looking for. However, links can inadvertently infringe copyrights or trademarks owned by the linked site, if they duplicate the information contained in the linked page and incorporates it, sometimes “framed” by the material behind it. A link should simply transport the visitor to the other site, without repeating the content found there.

One would think that a third party to whose site is being linked to would be grateful for the additional traffic, but this is not necessarily so. The linked-to site may not want visitors to access the website except through the home page, to maximize exposure to its overall content, main marketing messages, and legal notices. In fact,the terms and conditions of use posted on many sites seek to prohibit so-called "deep linking," or linking in general, without prior consent. You should, therefore, review the terms and conditions of any site being linked to to determine whether linking might constitute a breach of contract, even though there are few cases on the enforceability of such provisions.

There are ways for a web site to detect deep links to its interior pages. Server-side software can screen links to determine if users have visited certain pages before access to other pages is allowed. Where a deep link is important, a web designer should consider obtaining obtain permission for implementing it or simply link to the other site’s home page.

Another good practice is to disclaim liability for linked content. Separate notice screens or pop-up can be used to advise visitors that they are leaving your website and entering the linked site, noting that you have no control over the other site’s content.


Is my use of content from other sources, or links to another’s content “fair use”?

The doctrine of “fair use” provides an exception from liability for copyright infringement under the Copyright Act for the use of another’s copyrighted content. The Copyright Act provides that copyrighted work can be used without permission of the owner for certain purposes, including criticism, comment, news reporting, teaching, scholarship, or research. Whether a particular use constituted “fair use” involves an evaluation of four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work, i.e., factual or creative;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fair use exception as it appears in the Copyright Act can be found at: www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html

The fair use exception has been extensively litigated in the federal courts, and the determination of what is a specific use is "fair use" requires an analysis of the facts of a particular case. Decisions addressing fair use in the context of websites suggest that certain uses of others’ copyright images or text may be fair use. For example, it has been held permissible to display low-resolution photographs in thumbnail form in search results which contain links to authorized displays of such works. Nevertheless, most commercial users are likely to have a difficult time convincing a court that a use of third party copyrighted material should be considered a fair use. The Chilling Effects clearinghouse (www.chillingeffects.org) provides useful information on the analysis of liability for material posted online.
 

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