Internet Law FAQ
- What is Internet Protocol?
- What is a domain name?
- How does a business obtain a domain name?
- Why does a business need to search to see if a desired domain name is protected by a trademark or used as a trade name?
- Can a web site owner protect its domain name?
- What happens if there is a conflict between an Internet domain name and an existing trademark?
- Can a business trademark a domain name for future use?
- What can a site do if someone copies content from the web site?
- Can a web site post names and addresses of people?
- Can a user post pictures on a web page or web site?
- Can a web site quote another’s blog posting?
- What is “fair use”?
- May a web site copy from federal government documents?
- May a web site copy facts or ideas?
- What is a Creative Commons license?
- If another comments on the web site’s blog, does he/she license the rights to the web site owner?
- Our ISP received a DMCA complaint about our web site’s blog. What does that mean? Can we do anything about it?
- What must a DMCA notification contain?
- What are the counter-notice and put-back procedures of the DMCA?
- When can a web site claim the “safe harbor” provision for content that others post?
- What is a right of publicity claim?
- What are private facts?
- Can a web site be sued for publishing somebody else’s private facts?
- How does a web site owner know if a private fact is “newsworthy”?
- What is “intrusion into seclusion”?
Internet Protocol (IP) is the communications protocol underlying the world wide web (“web”) and allows geographically diverse computer networks to quickly communicate with each other. An IP address is the numerical communications address identified with a termination point of the Internet.
A domain name is a unique Internet or “web site” address and is also referred to as a “uniform resource locator” or “URL.” The domain name consists of a series of numbers that are used to identify a specific computer connected to the Internet. A domain name is an internet protocol address (IP address) made of a string of four sets of numbers separated by periods such as “222.101.211.01.” The IP address is similar to a telephone number in that it can be used to send and receive electronic communications to and from the IP address. Almost any phrase may be used as a domain name and ends with one of the top-level domain (TDL) extensions such as “.com” or “.org” or “.net”.
To obtain a domain name, search to see if the domain name is protected as a trademark or trade name, and if not, then use a domain name registration authority to search for an available domain name, fill in an application, and pay a fee to own the available domain that you have applied for. For example, to obtain a domain name that ends in .com or .org or .edu, fill out an application to an Internet Corporation for Assigned Names and Numbers (ICANN) approved registrar, such as Network Solutions. Prior to filling out an application with the approved registrar, a business may want to inquiry if the provider will also provide domain name service, if the provider operates a mail exchanger (MX) and will agree to provide email service for your domain name, and if you plan to use your domain name for a web site, whether the provider has appropriate equipment to host your web site (e.g., research “down” time of server, etc.). And, while it may be convenient to purchase all three services from the same internet service provider (ISP), nothing requires that the business use the same ISP. For example, the business may need to switch to a different provider to host its web site if the ISP’s server is consistently down, if there are load errors, and other problems.
Even if a domain name is available, another business entity or individual may be using the same word or phrase, or an almost identical word or phrase, as a trademark or a trade name. These businesses or individuals may choose not to register its trademarks as a domain name. But the business or individual might still be very interested in protecting its trademarks. A trademark owner may file a court action to try to prevent you from using your chosen domain name on the grounds that it infringes its trademark. For example, a trademark owner might obtain a court order preventing a business from using a chosen domain name if the trademark owner shows either that consumers will be confused about who is behind the domain name or that a business will attract consumers unfairly because its trademark is well known and consumers will seek it out on the Internet. In addition, a trademark owner can also initiate a domain name arbitration under the Internet Corporation for Assigned Names and Numbers (ICANN) Uniform Domain-Name Dispute-Resolution Policy (UDRP) to prevent others from using domain names that are similar to their trademarks.
It is wise to immediately obtain a trademark registration for a domain name in the countries where the entity conducts business or plans to conduct future business. And, if the domain name ends, for example, in .com or .org or .edu, then what matters to the site owner are the policies of ICANN. In addition, the site owner should check its Whois record to be sure that the registration authority has correctly listed who owns the domain name and make sure it lists up-to-date email, telephone and correspondence contact information. Finally, if the registration authority charges maintenance or renewal fees, then the site owner should make note of when maintenance or renewal fees are due and make inquiries to the registration authority.
Even if a company owns a registered trademark, someone else may still have the right to the domain name. For example, many different companies have registered the trademark EXECUTIVE for different goods or services. All of these companies may want www.executive.com but the first one to purchase the domain and use it for a legitimate purpose is the one that acquired the domain name and has the rights to it. Sometimes a person (known as a “cybersquatter”) registers a trademark as a domain name hoping to later profit by reselling the domain name back to the trademark owner. If you believe that someone has taken a domain in bad faith, you can either sue under the provisions of the Anticybersquatting Consumer Protection Act (ACPA), or you can fight the cybersquatter using an international arbitration system created by the Internet Corporation of Assigned Names and Numbers (ICANN). The ACPA defines cybersquatting as registering, trafficking in, or using a domain name with the intent to profit in bad faith from the goodwill of a trademark belonging to someone else. The ICANN arbitration system is considered by some trademark experts to be faster and less expensive than suing under the ACPA.
Yes, it is possible to acquire ownership of a trademark by filing an “intent-to-use” (ITU) trademark application with the United States Patent and Trademark Office (USPTO) before actually starting to use the domain name. The applicant must start using the domain name within the required time limits — six months to three years after the USPTO approves the trademark, depending on whether the applicant seeks and pays for extensions of time. The filing date of this application will be considered the date of first use of the trademark as long as the applicant actually uses the trademark within the required time limits.
If the web site owns the copyright to the work posted on its site, then the web site owner can enforce that right in court against anyone who copies its work without permission. A copyright exists once something is written, drawn, recorded or otherwise put into tangible expression. Unlike a trademark or a patent, a copyright need not be registered with the federal government. However, before a site can sue for copyright infringement, the site owner must register or at least be in the process of copyright registration in the U.S. Copyright Office. This is a complex area of law and a web site owner should consider consulting with an experienced attorney because certain recoveries against an infringer are precluded by registration after infringement has begun.
If you don’t want to register, it is a good idea to put others on notice that you have the copyright and thereby discourage them from copying. This notification can be accomplished by simply putting the familiar circled letter “c” (©) on your website followed by the year and your name, or by spelling out the word “copyright” followed by the year and your name.
That depends. If the web site gets a person’s consent to post his/her name and address, then yes. If the person does not consent, it is a courtesy not to post it. More-over, if the posting of this information is likely to spur violence, the postings might be illegal. For example, radical groups opposed to abortion have come under investigation for listing the names and addresses of selected doctors. There are other privacy issues to consider, so it is best to be cautious.
That depends. A user may post pictures to a web pate or web site with the consent of the copyright owner, unless the photographs are illegal, such as if they depict obscene child pornography. In addition, a user can generally post pictures the user took of people in public places where they had no reasonable expectation of privacy, such as in a mall or at a stadium. And, a user may reprint the pictures if the pictures are in the public domain. However, unless its “fair use”, reprinting pictures from another web site, a book, a newspaper, a magazine, or other copyrighted material (e.g., copyrighted pictures taken by a professional photographer) is generally forbidden. That is, a user must have the permission of the copyright owner before reprinting the pictures.
Yes. Short quotations will usually be fair use, not copyright infringement. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” So if a user of your web site is commenting on or criticizing an item someone else has posted, then the site likely has a fair use right to post the quoted content. In addition, it is worth noting that the law favors “transformative” uses – commentaries, either praise or criticism, are better than straight copying – and courts have said that even putting a piece of an existing work into a new context, such as a thumbnail in an image search engine, is “transformative.”
The Copyright Act at 17 U.S.C. § 107 sets out four factors when considering what is “fair use”:
- The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair.
- The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.
- The amount and substantiality of the portion used. Copying nearly all of a work, or copying its “heart” is less likely to be fair.
- The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it’s unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character. In other words, if your criticism of a product is so powerful that people stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.
Yes. Works produced by the US government, or any government agency or person acting in a government capacity, are in the public domain. So are the texts of legal cases and statutes from state or federal government.
Yes. Copyright only protects the expression – the combination of words and structure that expresses the factual information – not the facts or ideas themselves. Consequently, a site may report the facts or ideas embodied in another person’s article or web page.
Creative Commons licenses provide a standard way for authors to declare their works “some rights reserved” (instead of “all rights”). If the quoted source has a Creative Commons license or public domain dedication, the web site may have extra rights to use the content. Licenses don’t trump fair use, and if a site wants to do more than fair use allows, then look at the terms of the license to see what it permits and what, if anything, it requires the web site to do in return. The attribution license for example, lets a web site copy, distribute, and display a work so long as the site names the original author. Share-alike lets the site make derivative works so long as the site uses the same license for its re-mix. And, a work that is in the public domain is no longer under copyright protection.
The Digital Millennium Copyright Act, 17 USC § 512, creates a “safe harbor” immunity from copyright liability for service providers who “respond expeditiously” to notices claiming that they are hosting or linking to infringing material. The DMCA does not make ISPs liable if they do not remove content, but gives them a strong incentive to take the content down. That in turn gives those who want your material removed from the Internet a strong incentive to make claims of copyright infringement.
And, if a web site receives a DMCA notice but believes the material posted does not infringe copyright, then the site has the option to counter-notify. An ISP can put the material back up after a counter-notification and still keep its immunity from liability. If a web site is harmed by an erroneous takedown demand, the web site can even use the DMCA’s section 512(f) to fight back.
In order to have an allegedly infringing web site removed or have access to an allegedly infringing web site disabled, the copyright owner must provide notice to the service provider with the following information:
- The name, address, and physical or electronic signature of the complaining party [512(c)(3)(A)(i)].
- Identification of the infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials [512(d)(3)].
- Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
- A statement by the copyright holder of a good faith belief that there is no legal basis for the use complained of [512(c)(3)(A)(v)].
- A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the copyright holder [512(c)(3)(A)(vi)].
The DMCA provides an opportunity to counter-notify and tell the ISP that the material is not infringing. Unless the copyright claimant brings a lawsuit within 10 business days, the ISP can put back the material and still remain immune from liability.
A proper counter-notice must contain the following information:
- The subscriber’s name, address, phone number, and physical or electronic signature [512(g)(3)(A)]
- Identification of the material and its location before removal [512(g)(3)(B)]
- A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
- Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]
If a web site is concerned that a user might post copyrighted material, then designate an agent for notification with the Copyright Office. The safe-harbor provision requires that providers have a policy against repeat copyright infringement by their “subscribers and account holders.” If the site does not have subscribers or account holders, that policy can be as simple as “If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate them.”
The right of publicity is a claim that a web site has used someone’s name or likeness to its commercial advantage without the consent of the allegedly exploited individual and that such use resulted in an injury to the allegedly exploited individual. In general, the allegedly exploited individual must prove that the web site is using his/her image or likeness for advertising, other solicitations or another advantage (e.g., directing traffic to the web site). Freedom of speech rights may protect use of a public figure’s name and likeness in a truthful way, but a web site owner can still be liable if a court determines that such use implied a false endorsement.
Private facts are personal details about someone that have not been disclosed to the public. A person’s sexual orientation, a sex-change operation, and a private romantic encounter could all be private facts. Once publicly disclosed by that person, however, such facts move into the public domain.
Some jurisdictions allow lawsuits for the publication of private facts. For example, some jurisdictions require (1) public disclosure; (2) of a private fact; (3) that is offensive to a reasonable person; and (4) which is not a legitimate matter of public concern. Publication on a blog would generally be considered public disclosure. However, if a private fact is deemed “newsworthy,” it may published even if it might be considered “offensive to a reasonable person.”
A private fact is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Courts generally recognize that the public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes). Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment. However, a court may look at whether the private fact is pertinent to an otherwise “newsworthy” story.
Intrusion into seclusion occurs when you intrude upon the solitude or seclusion of another person or his/her private affairs or concerns when such intrusion would be highly offensive to a reasonable person. Interception of an electronic communication intended for a different recipient (i.e., an email or IM chat to another) can raise additional legal issues, such as, for example, federal wiretap laws.
Last Modified: December 5th, 2009