Forum Moderators: not2easy
I run a site where we publish academic articles that include copyrighted images for the purpose or criticism and commentary. It's on a university server and the use is well within the Fair Use guidelines. One thing our legal department warned us about, however, was "contributory infringement" whereby we could get in trouble for facillitating someone else infringing on copyright (even though we aren't infringing ourselves).
This all sounds really gray and vague, so I'm wondering if anyone has dealt with this before. Has anyone seen or heard of legal action against someone for "contributory infringement"?
If so, what are reasonable measures to defend against that? I've set up a few hurdles to anyone trying to save images, so while it's still quite possible to grab our images, it's not possible to do so without coming across a warning message. Also, visitors to the site have to agree to "terms of use" that they will not attempt to infringe.
So, is that enough?
thanks,
m
Welcome to WW.
You're one up on a lot of webmasters in that you have a legal department to turn to for advice.
I think your best bet is to outline to them what technical steps you are able to take -- preventing hot linking, javascript warnings, etc. -- and then have the lawyers tell you what is reasonable and sufficient to have some protection.
(I'm actually quite surprised your legal department hasn't already made this a stipulation. Wouldn't they be the ones who would have to respond to any such action?)
I know this doesn't help much but in this case that's what the lawyers are for.
Jim
Thanks. Lawyers are one of the (few) benefits of working for a University ;)
The lawyers we've talked to weren't able to comment on our specific technology, but they seemed to think that ANY effort to make infringement difficult would demonstrate our good faith effort to prevent it and, therefore, make it harder for someone to win against us.
I'm just wondering if anyone has had experiences (good or bad) with an actual court case involving Fair Use/contributory infringement.
Since there aren't any landmark decisions that I know of, the whole realm of Fair Use still makes me a little nervous, and I'm hoping to gain some reassurance from someone else's experience.
Is it for the university library website, or just the university website? (libraries get additional protection)
Is it for specific courses? (if not, it better be library)
Is it blocked from access from outside the university?
Are these images available anywhere else publically?
Are you depending on the educational clauses, the commentary clauses, or both in your position that it is fair use? If the commentary is a strong enough position on it's own, you might be able to release it to the public at large (though I am not sure you can even get away with it using complete copyrighted images, you are adding no value to the image itself)
Are you, the person putting this content together, an employee of the university? If you answer no to this one, I seem to recall that there is case law where you are not covered by educational fair use. The university will be protected, but you as a contractor might be responsible for the original act of infringement.
As for contributory infringement, I can't find any cases that cover the situation you are referring to. They are mostly related to community activities where there is direct infringement by the participants.
In your case, you would legally posting the image, so putting it up is not direct infringement (at least if your legal department is correct). And in theory, the only people you are providing it to would be those within your educational community. I would put the articles in a protected directory that requires logging in to the university system, with a notice about limiting its use to educational purposes.
Unless you are a state university, I would absolutely lock it in to university only access, and I would probably even restrict it to registered members of the class and faculty. Posting it on a publically accessible webpage could be seen as the equivalent of a professor making copies of a Scientific American article and passing them out on a street corner, which would be infringement in most judge's opinions.
In fact, because a photograph is an entire work on its own, I think that I would go to the trouble of contacting the rights holder for permission anyway. If they say yes, you are no longer limited to Fair Use, nor will you have any worries about contributory infringement.
As you can probably tell, I'm not totally convinced that as outlined, that you will not be in danger of direct infringement. If you are truly safe on the Fair Use issue, you would most likely be safe on the Contributory infringement issue.
Of course, you should still run this past your legal department. I ain't a lawyer, and these are only comments on the law and the cases as I understand them
Wow, lots of questions. Our legal people determined that we're covered with Fair Use, but I'll try to answer all your questions just in case:
Are you working for a state or private university?
State -- Florida, actually.
Is it for the university library website, or just the university website?
It's not for the library, but it is "published" by the Department of English . . .
Is it for specific courses?
No, but it is similar in its backing by the department. It's a journal, so it is an somewhat autonomous entity, but its being published by a department on departmental web space gives it that "credibility".
Is it blocked from access from outside the university?
No, but it can be, I suppose.
Are these images available anywhere else publically?
Do you mean are they previously published by someone else? Yes. To be more specific, the images in question are nearly all panels from comic books/graphic novels where an author has written an essay on a particular graphic novel (commentary) and wants to include a graphic image as an example. In nearly all cases, this amounts to 1-2 panels at a time amounting to no more than 5-6 pages total of a 100+ page novel/comic. (that's an "averaged" guess).
Are you depending on the educational clauses, the commentary clauses, or both in your position that it is fair use?
Both. I think the commentary is pretty strong, as is the University. We're not making any money off this either and if anything, I would think that our commentary would increase attention/sales of artists' work.
Are you, the person putting this content together, an employee of the university?
Yes, I am. As are all the other people working on this journal. In addition, most of us are also grad students of the university in question.
In fact, because a photograph is an entire work on its own, I think that I would go to the trouble of contacting the rights holder for permission anyway.
I guess I should have been more clear. I can see how a photograph, as an original work in entirety would be substantially different than a comic panel pulled out of context. (It's actually an interesting question of ownership since it's both original artwork and text (which can usually be quoted without worry about copyright).)
Like I said, I'm pretty confident that we're not directly infringing, but I sure would like to be more confident of that. What do you think, Dave?
m
Are you working for a state or private university?State -- Florida, actually.
Good. That gives you a lot more protection, but far from unlimited protection when the infringement is blatant. See the Chavez and Florida Prepaid decisions.
And that protection does not mean that it is legal for you to infringe copyrights.
As far as I know, that protection has yet to be tested when it comes to university employees when there actions are in relation to their jobs.
I believe that it only applies to monetary relief, not injunctive relief. So they can still mess with you.
Is it for the university library website, or just the university website?It's not for the library, but it is "published" by the Department of English . . .
I know that "scholarly journals" have more protection than a general citizen, but I would be surprised if it was as high as it is for libraries, classes or research.
I honestly do not know on this one. That is a specific case that I have never really cared about.
Are these images available anywhere else publically?Do you mean are they previously published by someone else? Yes. To be more specific, the images in question are nearly all panels from comic books/graphic novels where an author has written an essay on a particular graphic novel (commentary) and wants to include a graphic image as an example. In nearly all cases, this amounts to 1-2 panels at a time amounting to no more than 5-6 pages total of a 100+ page novel/comic. (that's an "averaged" guess).
That is certainly different than what I was assuming. I would agree with you here, as long as you are not pulling out copies of every (or even a significant portion) of the panels.
I thought you were taking other people's photographs and providing commentary on them.
I'm getting tired of quoting, so I will just add a few things without the quotes.
If it was my butt on the line, I would not be depending on the educational clauses if I were making it available outside the university. It would have to meed the commentary and criticism clauses. I would make sure that whatever panels I chose to include could not be put back together in a way that would remove any value from the original work. In other words, no complete story lines even of sub-plots.
But I still think that you should seek out the blessing of the rights holder, even if you are not specifically asking for permission. Lots of comic artists would be thrilled to have their work studies in a university journal. And if he gives you his blessing, all your concerns should just go away. If he doesn't, your position is just as strong as it always was.
But I still think that you should seek out the blessing of the rights holder, even if you are not specifically asking for permission. Lots of comic artists would be thrilled to have their work studies in a university journal.
I agree and we have gotten blessings on most everything we're using. Also, it has been the case that most artists are happy to have their work discussed, especially underground comix artists.
You've certainly given more information. I'm going to look up the Chavez v. Florida Prepaid case you mentioned.
Thanks,
molecularr
I'm going to look up the Chavez v. Florida Prepaid case you mentioned.
Oops. Those were actually two different cases. Chavez was against a spanish language paper published by the university of texas (houston, I think), and Florida Prepaid was actually a patent case that made it all the way to the supreme court. While it did not deal specifically with copyrights, it did deal with the 11th amendment.
You might want to check out the U of Georgia guidelines on copyright & fair use. [isd.uga.edu...]
They had the advantage of having one of the leading scholars and advocates of fair use, Ray Lyman. Since the guidelines were developed for a state university, I suspect that you might find them an interesting resource.
I'm not at all sure you should be wholesale handing out directives regarding how safe (or otherwise) people will be under certain usages.... at least, I personally would not feel particularly sanguine using your advice without talking to a civil attorney licensed to practice in the jurisdiction in which I live and work.
And while the original poster apparently has a qualified Uni legal staff with which to consult, that staff may (in fact probably does) have a fairly narrow vision as regards the legal situation posited by the original poster.
[Caveat: if you were NOT handing out directives, then I apologize. However, the overall tone of your posts came across exactly that way....]
I really don't see what you are bothered about.
First I asked several questions considering what he originally posted. Last I checked, asking questions was not legal advice or directives. In fact I do not see how the "tone" of a question can come out as anything resembling a directive.
Then let's just take a look at some of the things that you might mistake as a directive.
I told him that, assuming that his legal department is correct that it was covered under Fair Use, if it was me, I would take steps to limit the distribution to those people that would provide me with the greatest fair use protection to avoid any contributory claims. Calling that some sort of legal directive is like saying that "If it was me, I would drive under the speed limit" is a legal directive.
I then pointed out that a photograph is a separate, complete, copyrighted entity. In every case, copying an entire work will absolutely count as copying a significant part of a work. You do not need to pay an attorney to figure that one out.
Then I suggest that he should simply ask the rights holder if he can use them. That was not a legal directive, it was a simple suggestion that it was the friendly thing to do, even if he was covered by Fair Use.
I also point out that I asked the questions that I did, because the way it was written in the original post, there is case law that might have removed him from being able to claim Fair Use, and I was prepared to give him some case law to bring to his legal department to ask them to review it.
Oh, and look right there at the bottom of my first post in this thread:
Of course, you should still run this past your legal department. I ain't a lawyer, and these are only comments on the law and the cases as I understand them
Was that not clear enough for you? Or was the "directive" to run anything I say past his legal deparment first the part you object to?
Then in my next reply, I explained whay I asked a couple of the questions and referenced some case law that is applicable.
Then I once again suggested that if it was me, I would do my best to make sure that the work would meet the Fair Use review on comment and criticism and not just rely on the educational Fair Use Rights.
Should I not suggest that I would be careful if it was me that was releasing the material outside the university community? I do not see how this is a "directive" that you could object to.
And once again, I suggest getting the blessing of the rights holder, even if within the Fair Use guidlines.
Then (Gasp!) I suggest that he check out the Guidelines put out by the university in the state immediately to his north, that were put together precisely for his counterparts in the Georgia university system. And I mention that they were largely put together with the help of one of the great Copyright scholars of our time, as well as a law professor that had a pretty big impact, directly and indirectly, on many of the current sitting judges.
I just don't see what you are objecting to. I am assuming that you are still bothered by my position in the other thread, and that is keeping you from reading my posts with an open mind.
Could you point out one of my statements where you think I am giving inappropriate advice? (and please do not take them out of context)
And if it is some of my questions that bother you, or my brief explanations, I am quite willing to expand on them if you wish.
And finally, let me just say, that you would be a fool to not try and understand the laws that apply to you, and only rely on advice from your local attorney. The attorney is not the one that will pay the settlement or do the time. You do not need to be an attorney to understand what "Speed Limit 55" means.
Nor do you have to get the opinion of an attorney to know that certain actions will lead to greater possibility of a finding of infringement, and certain actions will reduce that possibility. Sometimes the law, or even the case law, is quite clear.
Libraries have extended Fair Use rights.
Educational Institutions have extended Fair Use rights.
Researchers have extended Fair Use rights.
Parodies have incredible Fair Use rights. (or more accurately, free speech rights)
Commentary, critisism and reviews have extended fair use rights.
Commercial use reduces (but does not eliminate) fair use rights.
These are legal facts. You do not need to be an attorney to know this. You only need one when you start heading into the grey areas as long as you have done your homework.
