PROTECT YOURSELF FROM INTERNET COPYRIGHT INFRINGEMENT

By Cameron G. Shilling

The proliferation of the Internet has brought about a corresponding proliferation of copyright infringement. This occurs when a person uses a copyrighted work on his or her Internet website without a license to do so. The key to protecting against Internet copyright infringement is to register the copyright.

A valid copyright exists from the moment a piece of work (i.e. literary, pictorial, computer program, audio visual) is reduced to a tangible medium of expression. For this reason, not all copyrights are registered. To do so, the copyright owner must register the copyright with the U.S. Patent and Trademark Office.

Under U.S. copyright law, if an unregistered copyright is infringed, the copyright owner can only seek an injunction (to stop an infringer from using the copyrighted work in the future), and the "actual damages" that the copyright owner sustained as a result of the infringement. Lost licensing fees are an example of actual damages. In the nebulous Internet world, however, actual damages are illusive, and therefore lawsuits are rarely worthwhile.

By contrast, the owner of a registered copyright has a host of advantages under the U.S. Copyright Act. The following are three of the most significant advantages.

• The owner of a registered copyright can seek "statutory damages" and attorneys' fees, regardless of whether or not the copyright owner can prove actual damages or lost profits. The Copyright Act sets statutory damages between $500 and $20,000 per copyrighted work infringed, and the court then chooses a number within that range. If the infringement was willful, the court may increase statutory damages up to $100,000.
• A registration certificate constitutes prima facie evidence of the existence of a valid copyright in an infringement action. The defendant then bears the burden of proving that the copyright is not valid.
• Registration is required to cut off certain defenses of so-called "innocent infringers."

A fairly recent case decided by the Ninth Circuit Court of Appeals illustrates the advantage of registering a copyright. Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284 (9th Cir. 1997). In Columbia Pictures, a television station owner was granted a license to broadcast five television series. When he stopped paying royalties, the owners of the series terminated the license. Nonetheless, the television stations continued to air the series-1,340 programs. Fortunately, the series owners had registered copyrights for each program. The courts ruled that the station owner willfully violated the owner's copyrights, set statutory damages at $10,000 for some violations and $20,000 for others, and awarded the copyright owner $8.8 million in statutory damages and $750,000 in attorneys' fees.

The large amount of statutory damages awarded in cases like Columbia Pictures is rare. But cases where the copyright owner's has illusive actual damages are common, especially in cases of Internet copyright infringement. By registering, the copyright owner opens the door for statutory damages and attorneys' fees. Even if only attorneys' fees and modest statutory damages (for example $10,000) are recovered, an injunction becomes a worthwhile endeavor. That is how to truly protect against Internet copyright infringement.