SES NY: Copyright In The Digital Age
The digital age brings with it a ton of legal questions, many of which have yet to be fully addressed by the courts. Much of this has to do with the lack of precedent and legislation, and sometimes judges’ reluctance to allow digital evidence. At SES NY, a team of legal experts was assembled to address all of these issues.
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This particular track addressed “Practical Copyright & Trademark Guidance for Webmasters and SEMs,” hosted by attorneys Jeffrey Rohrs, David Adler, Peter Raymond, and Deborah Wilcox. In the interest of providing as much of this valuable information as possible, the following will be pretty cut and dry (and a bit long).
Issue: Mazda bidding on Pontiac brand name keywords
Rohrs addressed the panel about Mazda’s recent marketing maneuver where the automaker bid on Pontiac keywords to provide a sponsored link to a comparison of a competing roadster.
The panel was reluctant to discuss definitively about the legality of bidding on a competitor’s trademarked name. Raymond, a litigator, said that comparative websites where brands are compared were okay, as long as the comparison was truthful.
Yahoo recently announced that effective March 1, 2006, competitors bidding on trademarked brand keywords would be prohibited. Google still allows the practice, but the panel noted that if the trademark holder complains to the company, the sponsored link would still appear, but would the keyword in question would be blocked from the title.
Issue: Splogs and Scraper Sites
Rohrs brought the issue of RSS, in this case standing for “really simple stealing,” and the unauthorized use of copyrighted material that can be monetized via contextual ad networks. More specifically, Rohrs asked the panel what options a copyright holder has for addressing the issue.
It is advised that first the copyright holder needed to decide if the scraper site was doing harm to the copyright holder’s business and to what extent. Adler persuaded against running to a courtroom to file a lawsuit every time there is an occurrence. Though each situation is unique and there shouldn’t be a blanket approach, having a lawyer send a letter to the offending site operator will usually take care of the situation.
“I rarely litigate,” said Adler. “It usually takes 2 or 3 letters at most.”
Wilcox stated that in order to have a case to receive full damages under copyright law, it is very important to register your copyright. For bloggers, it may be something they want to do when they write something they feel is really good.
Registering a copyright can be done 3 months after an item is published. But another suggestion was to register for serial copyright, like many newspapers do, so that all subsequent material is automatically registered.
Issue: Press Release Copyright
This was a tricky subject. Rohrs used an example where an Insurance.com press release was posted at AutoChannel.com. AutoChannel used IntelliTXT to place sponsored links for Insurance.com’s competitors after taking out other links provided by the company.
Because the press release is automatically copyrighted by the owner, is altering its contents actionable?
Raymond says it is actionable because the alteration is being used to make money and inflict damage to Insurance.com.
At this point a 30-year veteran journalist interjects saying that he receives hundreds of press releases everyday and that when he chooses one, it is always altered in some way. Also, the newspaper’s goal is to make money, and may or may not endorse the product.
This becomes an interesting side conversation because we see two new areas where questions that need to be addressed. No one would dare take action against the newspaper, but in this new digital age, the offended company may decide to take action on the Web. The journalist disagrees that there is any difference.
This may be a future issue for the courts to decide on a case by case basis. Wilcox acknowledges the difficulty in bringing these issues to courts because of the nuances they bring to judges that have little knowledge of how to deal with them.
“We have judges in their 80’s that don’t like computer cases,” she said. Older judges distrust them because they believe evidence not produced by older methods can be easily manipulated.
Wilcox also pointed out the cost of litigating is often prohibitive in these cases, and litigators need to be sure that the cost, along with the difficulties in court, was worth the battle.
“Any action brought against a Google or a Yahoo is a couple of million dollars minimum,” she said.
Because of these issues, Adler noted the importance of gathering as much evidence as possible by getting screenshots and printing off webpages, because the sites can be changed over night. Wilcox added that having a third party investigator take measures like these was also helpful to eliminate the possibility of tampering in the judges’ minds.
The panel reiterated “the power of the form letter” while also relying on guidelines provided in the Digital Millennium Copyright Act of 1998.