The OCILLA provides the ability for online service providers to take down content that is alleged to violate copyright law. The online service provider is then protected from liability to its customers for removing material from their websites and liability for copyright infringement claims themselves. Providers must, however, remove the material to qualify for protection under the act.
Contributory infringement can be imposed on the provider if they fail to remove the allegedly infringing material after receiving a complaint.
What Is Copyright?
In intellectual property law, a copyright is a right to prevent others from using your originally authored work.
Under the federal copyright law, copyright entitles the owner to many exclusive rights, such as the right to:
- Reproduce the copyrighted work
- Distribute copies of the copyrighted work to the public for sale
- Perform the copyrighted work
What Is Copyright Infringement?
A copyright is a legal right created in an author’s work by intellectual property laws. A copyright grants the author of a new and creative work exclusive rights to publish, distribute, and use their work. Therefore, copyright prevents other people from using the author’s original work without permission.
Copyright confers many exclusive rights on an author under federal copyright law.
Examples of such exclusive rights include:
- Reproduce the copyrighted work as desired;
- Distribute copies of the copyrighted work to the public for sale; and
- Perform the copyrighted work as desired.
Copyrightable works include, but are not limited to:
- Books;
- Poems;
- Song lyrics, musical compositions, and sound recordings;
- Plays, motion pictures, and scripts;
- Paintings and drawings;
- Choreography;
- Sculptures;
- Software;
- Broadcasts; and
- Websites and online content.
When someone violates a copyright owner’s exclusive rights without the owner’s or author’s express consent, this is called copyright infringement.
Here are some examples of copyrights and common copyright infringements, in addition to the aforementioned rights:
- Infringement of the Right of Reproduction: Copyright owners maintain the exclusive right to reproduce their work in any fixed form. As such, when a person reproduces a work by copying it and selling it, that act is considered to be infringing an owner’s right of reproduction. Copying and selling an original artwork would be an infringement of the right of reproduction;
- Infringement of the Right of Public Performance: If a person publicly performs an original protected song without permission, the act would be considered infringing the copyright owner’s right of public performance;
- Infringement of the Right of Distribution: An example of infringing an owner’s right of distribution would be if someone sells unlicensed copies of someone else’s original work, such as a work of literature or art. Individuals cannot distribute copies of a famous musician’s music for profit, for example;
- Infringement of the Right to Derivative Works: Copyright owners possess the right to modify their original work or create a new work based on their older works. The right to derivative works is violated when someone creates a derivative of an original work without permission. An example of this would be creating a movie based on a book without the author’s permission;
- Infringement of the Right of Public Display: Copyright owners have the right to show their work publicly. Their work can be published online as well. It would be considered an infringement of a copyright owner’s public display right if someone published someone else’s original work online without permission. It would be considered an infringement of the right of public display to release a movie online without the permission of its owner.
What Should Be Included in a Notification?
A copyright holder making a complaint to an online service provider must send a written notification to the provider’s designated agent registered with the copyright office.
Complaints must include:
- Identification of the copyrighted work;
- Identification of the allegedly violating material;
- Contact information;
- A statement that the complaining party has a good faith belief that the use is not authorized and that all information provided is accurate.
Upon receiving a complaint, the provider will remove the material and notify the alleged infringer. After the material has been removed, the copyright holder has 14 business days to file a lawsuit, or the provider will restore the material.
What If the Material Does Not Violate a Copyright?
The alleged copyright infringer has an opportunity to make a counter notification once a copyright holder has notified a service provider that the material was unlawfully removed. Upon receiving this, the provider must inform the copyright holder that the material will be replaced in 10 business days unless a lawsuit is filed.
What Are Some Penalties for Copyright Infringement?
In the event that an individual infringes on the exclusive rights of a copyright holder, the copyright holder may sue the individual for damages.
The following are some of the most common legal penalties associated with copyright infringement:
- Compensatory Damages: One of the most common remedies associated with a copyright infringement suit is that the infringing party will have to pay the copyright holder the money that they gained from the use of the copyright;
- Statutory Damages: Statutory damages are damages that are established by statute, specifically Section 504 of the Copyright Act. For each work infringed, the owner of the copyright can recover up to $150,000.00 in statutory damages. Those who willfully violate a copyright will face greater statutory damages, while those who are unaware of the violation will face lesser damages;
- Injunction: The most common remedy for copyright infringement is an injunction. An injunction is a court order that orders the party violating the copyright to stop their infringing acts;
- Orders of Seizure: If an infringing party possesses illegal copies of a copyrighted work, often the court will order that the illegal property be seized; and
- Criminal Penalties: In the case of willful copyright infringement, the infringing party may also be held criminally liable and face criminal penalties, including imprisonment for up to 5 years, fines of up to $250,000.00, or both per violation.
Copyright infringement lawsuits can include any combination of the above damages, as well as attorney fees and court costs. Depending on the circumstances of each case, a copyright lawyer can determine the appropriate remedy.
How Do I Prove Someone Infringed on My Copyright?
To prove that someone infringed on your copyright, you must prove the following two elements:
- You Own a Valid Copyright: Although it may seem obvious, the first element to proving someone violated your copyright is to prove that you have a valid copyright. You must demonstrate to the court that your work is an original work of authorship that exists in a tangible medium of expression and is protected by law to establish your copyright.
- Thus, you must demonstrate that you created a copyrightable work, such as those listed above. Although it is not a requirement to register your copyright with the U.S. Copyright Office, doing so will make proving you own a valid copyright much easier; and
- Your Copyright Was Infringed: To prove that your copyrighted work was infringed upon, you must demonstrate that your exclusive rights, such as the ones listed above, were infringed upon. If your actual work has been copied or used to gain financial gain, this is sometimes an easy element to prove. Other times, you will have to demonstrate that someone else’s work is substantially similar to yours to the extent that it is the same as your copyrighted work.
Do I Need a Lawyer?
Intellectual property and internet law are still quite new and complex. An experienced copyright lawyer can advise you of your rights under the law and options if faced with a lawsuit. If necessary, a lawyer can represent you in court.
