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Vigilantism on the Internet:
The "Web Posse" Crosses the Line
Internet Cowboys Toy With Extortion Place yourself for a moment in
the shoes of my client, a Usenet Access Provider whose service provide
links and binary decoding of images posted anonymously on the Usenet.
Customers link out from thumbnails posted on the service to the vast, unregulated
"Public Library" of the Web which contains whatever anyone places there
for public consumption. You receive the following E-mail messages.
Imagine also that these E-mail messages are copied to your Internet Service
Provider ("ISP") who, unapprised of the law, gets spooked and summarily
terminates your business:
* * * * *
* * * * *
Watermarks and Fingerprints Watermark and fingerprint technology is an inexpensive and effective way of protecting images, documents, and sound files from illicit copying. Digital watermarks are catching on quickly as digital artists and publishers begin to post and distribute their copyrighted works on-line. Watermarks provide a cheap means of identifying copyrighted works and notifying the would-be users how to contact the copyright owner to gain permission for use. Spread-spectrum watermarking and steganography are the most common forms of digital watermarking today. Steganography encodes hidden digital sequences within the binary file of the copyrighted work. The encoded watermark is often referred to as a work's digital signature. Although the watermark is embedded digitally within the image, it remains part of the image even when printed into hard copy, and can be read later by scanning the image into a computer. Watermarks even survive the telefax process. A "fingerprint," on the other hand, is the technical solution for tracing the identity of every copyright infringer who has replicated the protected image. A "fingerprint" is a recorded digital
imprint left by the user. An intelligent fingerprint is a tell-tale
script of the violator's location and uses of the copyrighted work.
To enforce copyright protection, the owner simply follows the fingerprint
trail. A publisher "reads" the fingerprints to determine who used
the work, how it was used, and how many times it was used. Accordingly,
when a publisher first commits his or her work to a digital format such
as scanning it or creating a CD-ROM, the watermark and fingerprint codes
are integrated into the image from the outset. This enables intelligent
enforcers to locate the wrongdoer who first posted the copyrighted material,
even if posted anonymously on vast public databases like the Usenet.
Follow the Guidance of Case Law -- Give Adequate Notice to Suspected Violators Internet Service Providers can be "busted" for unintentional
copyright infringement when they have failed to take adequate action upon
receiving proper notification of the infringing activity. See the
article "ISP Liability: What You Know May Hurt You" in the
November 1997 issue of WWWiz Magazine.
As mentioned in that article, the court in the case of Religious Technology
Center v. Netcom held that Netcom, an ISP, was not liable for copyright
infringement when it was unaware that its users were engaged in downloading
copyrighted materials. Likewise, in the case of Sega v. MAPHIA,
the court held that the standards for liability for contributory infringement
require that the ISP at least have knowledge that it is "substantially
contributing" to an infringement. Accordingly, anyone seeking to
legally enforce its copyright to images that proliferate on the Web, at
a minimum, must let the service provider know what is going on under its
nose. This should take the form of identifying with specificity the
copyrighted work, be it an image, sound file, or document. To protect
itself from liability resulting from reliance on misrepresentations by
overzealous competitors, a prudent service provider should also request
verification of registration of the copyright. A publisher who has
identified its infringers through a fingerprint process, and has placed
all parties on notice of the verified infringing activity, should then
consider civil remedies including an injunction. It should not, however,
resort to tactics that may backfire and expose itself to civil liability.
What a Publisher Should Not Do The Web Posse serves as a good
example of what a publisher should not do to enforce its rights.
Under the California Penal Code, extortion is defined as:
Fear, such as will constitute extortion, may be induced by
threat, either: (1) To do an unlawful injury to the person or property
of the individual threatened or of a third person; or (2) To accuse the
individual threatened, or any relative of his, or member of his family,
of any crime;...
Under California law, the imprudent,
and possibly erroneous notification of a Web site owner's ISP that its
server is going to be "fried" or the FBI will become involved may trigger
civil liability if the intervention wrongfully causes a termination of
the business relationship between the ISP and the suspected infringer.
The torts of "interference with contract" and "interference with economic
advantage" also carry with them the possibility of sustaining civil judgments
for punitive damages if malice or reckless disregard can be shown.
The sort of sentiment set out in the Web Posse E-mails to the ISP in the
example above suggest that the intervention, if wrongful, was made with
malicious intent. Simply put, using fear as a tactic to cause an
ISP to shut down a suspect business is extremely risky.
Conclusion There is a right way and a wrong
way to do things. Although the protection of copyright on the Web
is a concern of all publishers, the methods of enforcement of those rights
must stay within the confines of civil and criminal law. While the
Internet medium remains relatively unsophisticated in methods of controlling
copyright infringement, so it has also become a playground for gangster-like
activity by renegade vigilantes with super-hero complexes. Neither
activity is to be condoned. Resorting to common sense and lawful
means of achieving business objectives on the Web is the safest and most
prudent way of avoiding courtroom showdowns.
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