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Question: What if the letter accuses me of something I'm not doing?
Answer: If the cease-and-desist misinterprets what your website is doing, for example claiming you're "reproducing" things you just link to, you can try to send a response that clarifies the facts -- especially if the factual difference is legally relevant. First, though, you may want to judge from the tone of the letter whether that's likely to resolve the matter, or instead just to draw more attention to you and make the requester angrier.
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Question: What is a hyperlink?
Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link
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Question: Can search engines be liable for copyright infringement by providing hyperlinks to search results?
Answer: Some Internet search engines have been getting "takedown" requests under the Digital Millennium Copyright Act, Section 512 (see DMCA Safe Harbor for more information). The DMCA provides a safe harbor to information location tools that comply with takedown notices, but it is not settled whether they would be liable for copyright infringement if they did not use the safe harbor. Arguably, computer-generated pages of links do not materially facilitate infringing activity or put their hosts on notice of copyright infringements.
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Question: Is a link to a web page a derivative work?
Answer: Probably not, but the law on linking isn?t settled yet. One court
has suggested that if the web page containing the link incorporates the
?linked-to? page in some concrete and permanent form, it might be a derivative
work. See Futuredontics v. Applied Anagramics, Inc., 45 U.S.P.Q.
2005 (C.D. Cal), aff?d, 152 F.3d 925 (9th Cir. 1998) (unpublished
opinion). Another court ruling indicated that a website that ?framed?
a web broadcast with its own advertisements had created a derivative work.
National Football League v. TVRadioNow Corp., No. 00-CV-120 (W.D.
Pa. Jan. 28, 2000) (preliminarily enjoining website operator who framed
retransmitted broadcast signals with its own advertisements). It
is possible that a link that frames the linked page in such a ways as to
substantially change its original appearance will be found infringing as
a derivative work. But simply linking to a web page, without more,
should not create a derivative work.
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Question: Is "deep linking" illegal?
Answer:
"Deep linking" refers to the creation of hyperlinks to a page other than a website's homepage. For example, instead of pointing a link at http://www.chillingeffects.org, this site's "homepage," another site might link directly to the linking FAQ at http://www.chillingeffects.org/linking/faq .
Some website owners complain that deep links "steal" traffic to their homepages or disrupt the intended flow of their websites. In particular, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled its claim against Microsoft and lost a suit against Tickets.com over deep linking. From Ticketmaster v. Tickets.com opinion:
Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently.
So far, courts have found that deep links to web pages were neither a copyright infringement nor a trespass.
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Question: Is linking protected by the First Amendment?
Answer: The First Amendment to the U.S. Constitution says that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble..." The government (and states, under the Fourteenth Amendment) must meet a high level of scrutiny before restricting speech. A hyperlinks refers to and describes the location of another Internet resource. The text of the hyperlink and the material linked to may be highly expressive. In addition, the act of linking to other websites may be likened to protected "assembly," or association with those sites.
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Question: What rights are protected by copyright law?
Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are: (1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right. The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright. Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases. Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement. The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.
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Question: What defenses are there to copyright infringement?
Answer:
The primary defense to copyright infringement is "fair use." 17
U.S.C. ?107. The fair use doctrine allows the reproduction and
use of work, notwithstanding the rightsof the author (17
U.S.C. ?? 106 and 106A),
for limited purposes such as criticism, comment, news reporting, teaching,
scholarship, and research. Fair use may be described as the privilege to
use the copyrighted material in a reasonable manner without the owner's
consent. In deciding whether a copier's actions were fair, judges will consider
1. the purpose and character of the copying (certain types of educational
copying is allowed)
2. the nature of the original (originals made for commercial reasons are
less protected from copying than their purely artistic counterparts)
3. the amount and substantiality of the portion copied (one may not copy
the "heart" of a work without the author's permission); and
4. the effect that such copying may have on the market for the original
(copying may be permitted if it is unlikely to cause economic harm the original
author).
Examples of activities that may be excused as fair use include: distributing
copies of a section of an article in class for educational purposes; providing
a quotation in a book review; and imitating a work for the purpose of parody
or social commentary.
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Question: Does copyright protect words or short phrases?
Answer: No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be "original works of authorship" under the Copyright Act. Names may be protected by trademark, in some instances. See the Trademark FAQ for more information.
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Question: Are website terms of use binding contracts?
Answer: The law is still not settled on so-called "click-wrap" contracts, but a court will look at how prominently the terms of use are displayed and whether you had to agree to them before you could proceed with using the website or service. If you never saw the terms of use, there can be no "meeting of the minds" to form a contract. In Specht v. Netscape, a court found that there was no contract for a software download, where there was no proof the downloaders were on notice of or agreed to the terms.
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Question: What is this laundry list of things the C&D says will happen if I don't obey?
Answer: Your opponent may describe a parade of horribles to demonstrate with exquisite detail what it will do to you unless you capitulate. This list generally includes, but is not limited to:
(1) ceasing use of the allegedly infringing mark or surrendering the domain name;
(2) rendering an accounting;
(3) posting corrective advertising;
(4) obtaining an injunction;
(5) recovering costs and fees. Though these things sound awful, they are not medieval tortures (although that may be a function of the fact that Torquemada never thought of them). Ceasing use of the mark is self-explanatory: your opponent wants you to stop using the mark. Your opponent might also ask you to surrender your domain name if they believe the domain name causes (or is likely to cause) confusion with their trademark. For example, under ICANN rules (the UDRP), you may have to surrender your domain name if the following three conditions are satisfied:
(1) your domain name is identical or confusingly similar to your opponent?s;
(2) you have no legitimate right or interest in the name (in other words, you are not using the name to conduct a bona fide business or for non-commercial fair use purposes); and
(3) your name is registered and used in bad faith. An accounting basically means that you disclose the following information to your opponent:
(1) the date you began using the allegedly infringing mark;
(2) the names of individuals who knew of the use when it began;
(3) the amount of traffic at your web site or business at your store; and
(4) your profits and revenues during the time you used the allegedly infringing mark. Corrective advertising means you give notice to the public that you were using a mark confusingly similar to your opponent?s, and that you are not affiliated with your opponent. An injunction is a judicial order to do something. An injunction can prevent you from using the allegedly infringing trademark. Some provisions of the Lanham Act permit a trademark holder to recover attorney?s fees and court costs from an infringer. That your opponent has listed these various remedies does not mean that it is entitled to them; do not confuse the smorgasbord of legal options with your opponent?s right to inflict any of them on you.
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Question: What does the "reservation of rights" language mean? What are they "waiving" at me?
Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.
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FAQ: Questions