Copyright law hasn’t changed much since the Digital Millennium Copyright Act of 1998 (the DMCA) – but social media has changed the way people think about what copyright law actually means. And the number of lawsuits is growing at an amazingly high rate.
When it comes to understanding the law itself, and how to handle those lovely legal letters called “DCMA Takedown Notices”, I’ll defer to the Electronic Frontier Foundation’s excellent white paper on the subject, which you can find here.
I think, however, that the main reason for the explosion in litigation is that so many people believe the seven costly myths listed here. My writing partner David Coursey and I spoke at a conference a few years ago and asked our audience these questions. Then, last year, I sent a survey on the same myths to several hundred bloggers and found that a very high percentage of them still believe them.
Do you think any of these statements are true? Re-think things, then! They’re all untrue, and believing in these myths can be costly.
Myth #1: It is OK to repost (that is copy and republish) a complete blog post from another blog without advance permission so long as you give credit and link back to the original blog. (No, it isn’t. You can link to a blog and comment on it in your own words, but you can’t pick up and re-post the whole thing — or even a substantial part of it — without permission.)
Myth #2: There are no limits to the number of links you can post to someone’s website, and no restriction as to where on someone’s website you can link. (There are two kinds of links – site links, to a website’s home page, which are permissible in nearly all instances – and deep links, to a specific location on an inside page of a website – which are sometimes restricted and may require advance permission from the copyright holder. This is especially true for sites with a “paywall”, where some content is free, and other content requires payment.)
Myth #3: If someone writes an article about you, your child, school, organization, business or product, it is ok to post the whole article on your website or blog. (It isn’t – being the subject of an articles does not give you any ownership or publication rights in that article. It’s ok to link to it with a comment — Look what the New York Times said about my new book! <link> — but not to republish the whole article on a website, blog, or social media site.)
Myth #4: You don’t need permission to take candid photographs of people or places, and publish them on the Internet (on Facebook, your blog, or photo sharing sites like Flickr). (It isn’t – specific written permission is required to use the name and likeness of anyone who isn’t a public figure, and you need permission to take photos in some places such as a private home, art gallery where copyrighted works or on display, or venues that restrict photography. The one and only DMCA Takedown notice I ever sent was to the host of a Social Media Bootcamp I attended last year as part of my job. The host took digital pictures and posted them all over the place. I thought that my photo implied an endorsement of her event. Besides, the photos were unflattering. When I asked her nicely to take them down, she refused, asserting that “anyone attending a workshop on social media had no right to expect privacy.” Not true. I paid for a class — not to become an unpaid model promoting her business. The DMCA notice shocked her, but complied promptly. Smart woman.)
Myth #5: Photos you download from a website like Flickr that come with a Creative Commons License can illustrate anything, without restriction. (You can’t use a photo obtained legally in a fashion that misrepresents the image or the people or places depicted in an image. And some Creative Commons Licenses specify “non-commercial use”, or restrict the way you can alter the image. Others require a link back to the original, or the publication of a specific credit. For example, if you are blogging about bad hotel experiences, and illustrate the post with a photo of a “generic” hotel registration desk from Flickr, the implication is that THIS individual working for THIS hotel was rude – and that can subject you to defamation litigation.)
Myth # 6: Bloggers have an absolute right to talk about their own experiences, including experiences at work, or as a participant in an event, class, or legal proceeding. (The obligation to protect the privacy, confidentiality, and intellectual property of others extends to what individuals post on social media sites and blogs, and many cases have limited employee, student, and juror rights to blog about their experiences. Consumers, too, may find they have limited rights to blog about their experiences. For example, if you pay to attend a seminar on “10 Ways to Make Money on Wall Street”, you should ask permission before you turn around and list the five tips you found most helpful on your blog, because that may constitute “misappropriation” of the intellectual property of the person teaching the class.)
Myth # 7: Bloggers have no legal liability for copyright infringements (videos, text, audio, etc.) posted by people who visit their blog and use the “comment” option. (“Common carriers” like Facebook or YouTube have no such liability, though they must remove the offending content when asked to do so, but individual bloggers may not have that protection. One firm of lawyers I won’t name seems to specialize in suing bloggers, and they have successfully asserted that unlike sites where the sheer volume of content makes policing it impossible, most blogs are small enough that the blogger can and must police it for copyright infringement.)