Now that it has become de rigueur to have a web site on the Internet, it is time to reconsider what wrinkles the law has in store for Internet web site designers and hosts. What do you have to worry about with web sites that you didn't have to worry about with other advertising or publishing media?
Today, let's discuss three and a half issues that are special concerns for the web site host, and briefly reconnoiter the domain name battlefield:
- The Internet is interstate and international. Think of all of the defamation, copyright, trademark and privacy issues of the print, television and radio media, except that your content is distributed into all fifty sovereign U.S. states and one or two hundred foreign countries, each with it own set of laws. A federal court in Tennessee has convicted California site operators of obscenity and Germany has compelled Compuserve to break connections to California sites posting neo-Nazi material. Considerations that are part of national or international ad campaigns or publicity apply to every web site.
The Babel of laws applying to web sites can be limited somewhat by confining any product or service offering to residents of specified states or countries. But other content is vulnerable to legal attack wherever it appears. One commentator, Alexander Gigante, has proposed an international treaty modeled on the existing European treaty governing programs distributed by satellite1. Under that treaty, the legality of content is substantially determined by its country of origin. Until the day arrives when that or another uniform rule is adopted, web sites will have to be vetted to assure that their content is safe in all significant jurisdictions, or restricted to subscribers in safe jurisdictions.
- Interactiveness. Frequently, web sites permit visitors to post or upload material, as through chat groups or bulletin boards. While the uploaders are clearly responsible for their material, the site host is also potentially liable for irresponsible postings.
Decisions on the legal exposure of site owners point in different directions. Paradoxically, site owners who make some effort to control uploaded content have been held to a higher standard. This perverse result is reached by treating content monitoring site owners as "publishers" of the uploaded content rather than as mere "common carriers" or "distributors". While the trend may be toward distributor treatment, web sites permitting uploading must monitor the latest decisions. A study group called the Information Infrastructure Task Force appointed by President Clinton has not proposed relief for site owners; its "white paper", published in September, 1995, recommended against legislation reducing the exposure for copyright infringement of service providers who permit uploading. Uploading will continue to be a hazard for site owners for the immediate future.
- New medium rights. This issue is an old chestnut, but a hot chestnut nevertheless. Even if you have a contract giving you the right to reproduce and transmit content by radio, television, videocassette, telephone, cable television, satellite, mimetic enactment in front of the Metropolitan Museum of Art, and so on, you may still lack the right to expose it to the world on your web site.
The invention of new media for copying and distribution has raised issues of ownership of rights in the new medium throughout the 20th century. Courts have been called upon to say whether broad dramatization rights included motion picture rights (1911), whether motion picture rights granted in the silent era included talkie rights (1933 and 1936), whether motion picture rights included distribution by television (1968), whether television rights included cable television rights (1993), and whether motion picture or television rights included videocassette rights (1996 and 1988), among others. The courts have answered these questions by saying, respectively, yes, no and yes, yes, maybe, yes and no.
Read the contracts you have that grant you the right to use your web site content. If you find a clause giving you the copyright or rights in all media "then known or thereafter invented", or the like, you are probably all right. If not, start worrying. Even with the foregoing new media language in your contract, the convergence of media in the Internet may place you in conflict with another grantee having rights in a different old medium and similar new media language in his or her contract.
The need for new media rights becomes prominent when we get to our last (half) point, to wit:
- Downloading. This is only arguably a new problem because it is an old problem in a new guise. Downloading is merely an extremely convenient mechanism for making copies. Print and electronic media have always been subject to copying of various kinds. Whether making material available for downloading implicates the site host in any illegal copying by visitors is a wide open question where the uploading of the material did not violate the law. Web site owners must consider controlling downloading with passwords.
Web site names. One Internet issue that is somewhat different from exposure to civil or criminal prosecution is that of controlling the name of your web site. How do you get and protect the name of your web site?
- Downloading. This is only arguably a new problem because it is an old problem in a new guise. Downloading is merely an extremely convenient mechanism for making copies. Print and electronic media have always been subject to copying of various kinds. Whether making material available for downloading implicates the site host in any illegal copying by visitors is a wide open question where the uploading of the material did not violate the law. Web site owners must consider controlling downloading with passwords.
The part of the site name that you care about is the part that has your company name or trademark. This part is called the domain name. The basic rule on registering a domain name is first come, first served, so prompt action is important. Some companies have registered not only a domain name containing their own company name and the names of their principal trademarks, but also domain names close to those names and trademarks.
Where there are conflicting claims to domain names, the body responsible for registering domain names appears to be more concerned with staying out of lawsuits than saving domain names for their rightful owners. Unless you have a court order or arbitration award, you can't get your company's name or mark back from someone who has already claimed that name for a web site. The best you can do, with the right documents, is to get the name taken off the Internet entirely while you and the conflicting claimant fight it out in the courts.
It is worth noting that domain names can be registered as trademarks, and it very reasonable to believe that the trademark arena is where the ultimate domain name battle will be fought and determined.
This article is reprinted with permission from the October 1996 edition of Corporate Counsel Magazine.
© 1996 NLP IP Company www.lawnewsnetwork.com
- Cardozo Arts and Entertainment Law Journal (Sept. 1996).