NEW YORK — It has become commonplace for opposing groups and interests to use the Internet to focus widespread public attention on audio and/or video clips culled from live broadcasts and personal appearances to “out” or embarrass their opponents, competitors or simply those with whom they disagree.

In an era where electronic transcriptions (recordings) can be distorted and “virally” mass distributed — often out of context — for the sole purpose of inflicting damage to people’s images and interests, it is important that broadcasters, especially those in the contentious world of talk media, understand their legal rights and responsibilities regarding copyright infringement issues and law.

Copyright is a legal protection designed to help prevent certain types of material products of communication from being reproduced, distributed, revised, or publicly performed without the permission of the copyright owner. Copyright is there to protect audio and video from being hijacked for a variety of uses unintended by their rightful owners.

It should be noted that in most circumstances, the owner of the copyright is the creator of the work. However, applicable in this industry, if an employee creates the work within the scope of his or her employment, the employer is the copyright owner, since this work would be considered to be “made for hire.”

The immediate response to a potential infringement situation is to pursue legal action claiming that the replay of the audio or video is an act of violating the copyright. This is a legally valid option, but may not be the best first move strategically.

The two main problems with pursuing legal action for copyright infringement are 1) legal recourse requires time, energy, and significant financial resources, and 2) it’s not always reliable in achieving the ultimate desired outcome – to have the infringing audio or video removed from the Internet (or wherever it is being presented).

Even if the copyright holder for the Don Imus radio show had filed suit against everyone who had used the now famous “nappy headed” audio/video clip – there would have been no difference in the outcome of that circumstance, because the case probably wouldn’t have advanced much further than the filing stage, by the time Imus had lost his job and suffered worldwide damage to his reputation. (Whether he deserved it is not the issue here or the point of this article.)

Depending upon where the allegedly infringing exposure takes place, broadcasters (and victims) might have an alternative recourse that will get the infringing material removed significantly easier, faster and with much less expense than a traditional copyright infringement claim. However, it should be noted that the following information should not be used as an exclusive remedy. It is only a temporary stop gap that results in the infringing material to be removed quickly – but it is not permanent and if countered, the next step would be legal action.

The Digital Millennium Copyright Act

If the allegedly infringing content is being hosted on the Internet then a copyright holder can have the content removed from the website by fulfilling basic requirements as outlined in the Digital Millennium Copyright Act.

The second title of the Digital Millennium Copyright Act, known as the Online Copyright Infringement Liability Limitation Act (OCILLA), creates a protection for online service providers (such as AOL or Podjockey) against copyright liability, should users of their service infringe copyright laws. Under the previous legal paradigm, Internet Service Providers (ISPs) could be held liable for hosting copyright protected material without proper permission from the copyright holder.

For non-public generated content platforms – like most personal blogs or websites – this is not that big a concern. If the content is reasonably and responsibly controlled by the webmaster, the posting of potentially infringing content can be avoided. However, in the matter of websites such as YouTube where the content is entirely user-driven, this liability could become a serious concern.

In order to avoid requiring ISPs to patrol the entirety of their content (a waste of time and resources), the DMCA provides prescribed guidelines that require the ISP to promptly block access to and/or remove allegedly infringing material once they have been notified of alleged copyright infringement from the copyright holder or holder’s agent, in order to qualify for a “safe harbor” from liability in a subsequent infringement suit.

In order for a copyright holder to take advantage of these takedown procedures, they need to contact the ISP’s designated agent (registered with the Copyright Office) including:

- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;

- information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receiving the aforementioned notice, the ISP must take reasonable steps to promptly notify the alleged infringer of the action and remove the allegedly infringing material.

To maintain its safe harbor protections, the ISP must:

- not have actual knowledge that the material is infringing;

- not be aware of facts or circumstances from which infringing activity is apparent; and then

- act expeditiously to remove, or disable access to, the material upon obtaining such knowledge or awareness;

- not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

- have a designated agent registered with the U.S. Copyright Office to receive notifications of claimed infringement.

If the designated agent receives a notification that substantially complies with the notification requirements, the ISP now has actual knowledge and must expeditiously disable access to the work. If they do not expeditiously disable access, then they could be held liable for infringement as well.

The key fact to learn from this is that a copyright holder has a resource to have infringing material taken down before considering any formal legal action and it is in the best interest of the company hosting the information (not the owner of the website – but the owner of the server) to remove the information, thereby preventing liability to suit.

However, it should be noted that the act also provides for a counter-notification system. So, if you are posting material on the web that someone claims is a copyright infringement, then you may find yourself being notified by your ISP that access to your page has been disabled until this has been resolved.

What prevents someone from being malicious and having your site taken down by means of a false DMCA notification? Section 512(f) of the act states anyone who makes a false claim of infringement or false counter-notification is liable for the damages suffered by the other parties, including legal fees.

The days of broadcast statements vanishing into thin air after being heard fleetingly by niche audiences largely tuned in to their context and philosophy are over. The utterance of words on the air in the age of the Internet and viral digital transmission are equivalent to printing them in ink or even carving them in stone. The Digital Millennium Copyright Act provides broadcasters and commentators with a reasonably expedient defense against abuse within this new arena, though not the exclusive legal remedy for copyright infringing situations.

The subject of a future column will be the fair use defense to copyright infringement.
Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

Matthew B. Harrison is an entertainment and media attorney with Harrison Strategies, LLC. The Springfield based talent management group has offices in Massachusetts, New York and Washington D.C. When not practicing law, Harrison also is a fine art photographer with FNS Studios located in Springfield, MA and Silver Jack Photo located in Brooklyn, NY. Visit him on the web at www.photosandthelaw.com or email him at matthew@matthewharrison.com