A recent decision by the United States Court of Appeals for the Ninth Circuit serves as reminder of the types of litigation that can arise from simply maintaining a website. Although the decision involved a dispute between two law firms, the facts could easily be related to competing businesses.
The case involved Brayton Purcell, LLP, a California law firm that successfully sued another law firm for copyright infringement based on website content. Brayton Purcell had copyright protection for its substantial website content on elder law. According to the decision, a competitor law firm must have liked the content because the competitor copied the content verbatim for its own website. This resulted in an undisclosed arbitration ruling in favor of Brayton Purcell.
Any business with a website should consider having a legal review done to determine if potential problems exist with the website’s content. Facing a lawsuit over a website is one the problems I discussed in a recent lecture on 5 Technology Bombs That Can Sink Your Business.
There are many ways that a website can lead to litigation. Stanley Jaskiewicz authored an excellent article for E-Commerce Law & Strategy featured on Law.com related to "clearing" rights to publish content on websites. He cited a simple example of how a business website can infringe a copyright by merely copying and pasting a photograph from one website to the business’ website. In the process, the business might infringe the rights of the original photographer and the website owner.
A basic legal compliance review for a website can avoid this type of problem. It starts with a risk assessment of the website and its content, including a review for potential claims involving:
- Copyright & Trademark infringement. Copying from the the look and feel, content, and slogans from another website are some of the ways you can run afoul of copyright and trademark laws.
- Defamation & Disparagement. Posting content that is defamatory or disparaging of a competitor could result in litigation because the statements could be viewed by millions.
- Unfair Trade Practices. This type of claim is usually a tag along to some other actionable conduct. This claim is often used to obtain an injunction or to recover greater damages and attorney’s fees.
- False Advertising and Misrepresentation. A website should be viewed no differently than traditional advertising. False claims can bring lawsuits from consumers who make decisions based on website content.
- Domain Name Disputes. These disputes often occur when two companies want a similar domain name. Depending on a variety of facts, one company may have greater rights to use the name regardless of who registers the name first.
Here are some tips to avoid a lawsuit concerning website content:
- Conduct a risk assessment. This includes an audit and inventory of the website content.
- Obtain "clearance" rights. If any of your content might violate copyright or trademark laws, you should seek to obtain clearance to use the material. This involves the concept of searching out property right holders or authors and seeking permission or paying for use of the content.
- Avoid use of protected materials. For example, do not copy another website verbatim as the law firm did in the California case. This might seem like a no brainer but many people believe that anything posted on the Internet somehow loses its copyright and trademark protection.
- Protect your content. In the California case, it was noted that the law firm had copyrighted its online content. The law firm also monitored for any other website copying its content by use of Copyscape website. Copyscape allows a user to input a website address or specific page to search the web for plagiarism.
- Cooperation or settlement. Lawsuits involving property rights for website content usually begin with one website owner sending another a "cease and desist letter." This is a demand that an owner take down infringing material. One way to avoid a lawsuit is to simply agree and take down the material. Alternatively, you might be able to reach an agreement for use of the material.
The bottom line is that your business does not need the headache of a lawsuit over a website. Taking caution from the beginning with website content can help eliminate the risk.