January 23, 2012

Ecommerce Copyright Law

Today’s technology makes it extremely easy for unscrupulous marketers to browse a website, grab a photo or few lines of text, paste it into their website and call it their own. There’s a better than average chance that at some point you will find your content being used in a manner in which you have not given permission, and you will be faced with the decision of what, if anything, to do about it. In this article we will attempt to clarify some of the esoteric laws governing fair usage of copyrighted materials, including text and photos. In this series of articles, planned for three parts, we will delve into some of the issues surrounding trademark law, and other legal issues related to search and online commerce.*

What is a copyright?

According to Copyright.gov, the website of the United States copyright office, copyright is “a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” Copyright covers both published and unpublished works. Unlike a patent, which protects inventions and discoveries, copyright protects works of original authorship.

In its most basic sense, copyright means “the right to copy” an original creation, and only the owner of the copyright can set limits on how the copyrighted work is used or exhibited. Copyright should not be confused with “copywrite,” which applies to the process of writing promotional material.

What is protected by copyright?

Copyright protects “original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” If you register a copyright on one of your original works, it allows you to display the work with the copyright symbol of "©." Legal protection extends to original work even without the registration, but registering does entitle you to more protections, such as statutory damages and compensation of attorney’s fees if your copyrighted materials is involved in successful litigation. Plus, there’s a public record of your work being registered to you as your own.

DMCA Compliance

The Digital Millenium Copyright Act became a copyright law in 1998. Part of the act criminalizes the use or distribution of technology which attempts to circumvent copyright controls. Another part limits the liability of Online Service Providers in the event of copyright infringement involving someone they provide service for. MightyMerchant has posted a DMCA compliance statement which we adhere to. In the event that one of our clients experiences their copyrighted material being used improperly, we would do our best to assist and advise on a course of action.

Copyright for Internet marketers

Items appearing on a website, including photos, artwork and written content may be protected by a copyright. The government’s publication, Circular 66, Copyright Registration for Online Works, explains the details of copyright law for online work by saying that “works accessed via network (websites, homepages, and FTP sites) and files and documents transmitted and/or downloaded via network” are protected, as well as works transmitted online including “text, artwork, music, audiovisual material (including any sounds), sound recordings, etc.” This could include multimedia such as podcasts with video or audio, and displays or presentations drawn up for conferences or conventions.

Submitting a registration

To register a work online, three things must be submitted to the Copyright Office together in the same envelope: a completed and signed application, a copy of the material to be copyrighted, and the filing fee. Different materials require different forms as the following list shows:

• Form TX—literary material
• Form VA—pictorial and graphic works
• Form PA—audiovisual material, including any sounds, music, or lyrics
• Form SR—sound recordings
• Form SE—a single issue of a serial
• Form SE/Group—a group of issues of a serial, including daily newsletters
• Form GR/CP—a group of contributions to a periodical. (This form must be used in conjunction with Form TX, PA, or VA.)

As of this writing the filing fee using a paper application was $45, and $35 for an electronic filing.

Copyright infringement online

Copyright infringement occurs whenever someone uses someone else’s copyrighted material without permission. Online, copyright infringement is governed by the (DMCA), and allows for infringement in the case of unauthorized access and/or copying of a copyrighted work.

It’s very easy for someone to take work on the web and republish it as their own. While technologies do exist to help you track when your content has been used, it’s not always noticeable when someone else has used your content, at least not right away. The good news is that copyrights protecting online works are just as enforceable as other copyrights. The bad news is that online copyright infringement is constantly evolving as new technologies emerge and there’s so much money to be made by taking advantage of new online publishing opportunities.
Content on the Internet could include original articles, text, videos, music, images, or podcasts. Now, let’s take a look at some of the ways that your content on and offline could be compromised.

Scraper sites

Sites that utilize content entirely taken from other websites are called scraper sites. These sites almost entirely exist as revenue sources from advertising. Typically, AdSense ads are added to the site along with very little or no real content. The hope is that without finding anything of real value, visitors will click on an ad or affiliate link to earn the site money.

These sites typically pull in excerpts from sites which rank highly for keywords they have targeted. Particularly vulnerable are sites or blogs utilizing RSS feeds, which scraper technology can easily exploit. This is not to suggest that using RSS feeds on your site is a bad idea or unsafe, because for the most part these scraper sites are harmless and easy to ignore, but it does add another layer to what you should be aware of.
Scraper sites may display excerpts of blog posts with a link back to the original blog. While many scraper sites attribute the content to the original owner, you may find duplicates of your blog posts in your own, exact words attributed to “admin,” or “unknown.” This type of unauthorized use is a violation of copyright laws, if you choose to pursue it. Often, these sites pop up and disappear quickly, and pursuing them may be a waste of time as they often don't respond to letters or emails. Ignoring these sites may be the best strategy, unless you want to give it a try and see if they respond to you.

User-generated content sites

User-generated content describes such online services as YouTube, where millions of people go to post videos of themselves, their business, or anything that happens in the world. The problem with this is that YouTube allows people to post videos without pre-screening them, so someone could easily post video that belonged to someone else. In fact, this has happened many times and due to outcry YouTube has always pulled the video in the past, but not before some popular videos received thousands of hits.

Music sharing

The music industry’s opposition to copying CDs numerous times, or online file sharing of music has received much press in recent years. Numerous infringement cases have been brought against people for using file-sharing services like Napster to easily share copyrighted songs and music.

In the ‘olden days,’ illegally traded music was called bootleg recordings, and they usually circulated in the form of cassette tapes. The musicians didn’t like bootlegs then and they don’t like it now. If you are a musician or sell audio recordings, this issue is clearly a prime one to watch.

Misappropriation of text

This may be the most common misuse of content online. It’s so easy to cut and paste someone else’s text and use it as your own. Often an article may be stolen and not attributed to you and circulated with someone else’s name on it. Or perhaps your product description appears on someone else’s website who happens to sell the same product as you. Sometime, people may just lift a line or two of text from a landing page. This type of content usage can be very hard to spot because you may have no way of knowing who’s using your content unless you go looking for it.


Sometimes, graphics may be stolen from one site and placed on another as free graphics or ‘adoptables.’ Then other people visit the site and assume that the person distributing the images has the right to them, and takes the image for their own use. Then other people may do the same thing. Often, this is out of ignorance of the nature of copyright law and the incorrect assumption that everything on the Internet is ‘fair game.’

One of our clients experienced the unauthorized usage of photographs of products from her website, which were placed on another website that sold the same products. In the next newsletter, part 2 of this article series will look at how she noticed the infringement, what steps she took, and also some free tools you can use to monitor your own content usage.

By: Vanessa Salvia

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