The Software & Information Industry recently sent the following letter to press clippings and media monitoring services, putting them on notice that their services may be infringing the copyrights of their members:
The Software & Information Industry Association (SIIA) and its publishing members have become aware of the significant and rampant piracy by some companies providing “clipping” or “media monitoring” services that provide clients access to news articles or other copyrighted information, often based on specific subject requirements designated by the client (hereafter referred to as “media monitoring services”). At the urging of our publishing members, SIIA has been asked to conduct an education and enforcement initiative focused on ensuring that media monitoring services understand their obligations under the copyright law and abide by that law.
This letter represents the first step in this initiative. It is being sent to you and all other companies known to offer media monitoring services in the United States, and many abroad. Its primary purpose is to alert you to the steps you need to take to comply with copyright law. The fact that this letter was sent to you does not mean that your company is being targeted. This is not a cease and desist letter. It is our vehicle for educating the “media monitoring service” industry on copyright law as it pertains to this type of activity and alerting them to forthcoming enforcement actions by SIIA against those who choose not to comply with the law.
Accordingly, if your company is compliant with copyright law and has obtained the proper licenses from the relevant copyright owners or their agents, it has nothing to worry about and does not need to fear further action by SIIA. If, however, your company is not complying with the law or you are uncertain whether your company is complying consider this letter both: (1) an opportunity to review your practices further to understand what your company needs to do to become copyright compliant, and (2) formal notice that the publishing industry is concerned about, and focused on, infringements taking place in the media monitoring industry and, in the near future, will be taking steps to enforce their rights against those that fail to adequately heed this warning.
Copyright law dictates the way that business articles can be copied and distributed. Under the copyright laws of all countries, text materials including magazines, newspapers, books and journals are copyright protected, even if published on the “open web.” These laws also give the owner-publisher the right to control the copying and distribution of those copyright-protected materials. Accordingly, in most cases, permission from the copyright holder is necessary before a work can be lawfully copied and/or distributed. Because media monitoring services copy and distribute materials to a wide audience, for commercial use, they need a license from the copyright owner-publisher.
The consequences of copyright infringement can be severe, with fines reaching into six figures. For instance, the remedies under the U.S. Copyright Act that are available to publishers include statutory damages up to $150,000 per violation for willful violations and $30,000 per violation for non-willful violations, plus attorneys’ fees. Title 17 U.S.C. §§ 502-505. Courts have had little difficulty imposing these substantial fines on those who fail to abide by the copyright law. For example, see Lowry’s Report v. Legg Mason, 302 F.Supp.2d 455 (D. Md. 2004) or Graham v. Haughey, et al., No. 05-612 (E.D. Penn., April 2, 2008), in which the courts ordered the defendants to pay close to $20 million each for internal copying of copyrighted content.
In addition to potential liability for copyright infringement, media monitoring services also run the risk of violating other federal and state laws, such as trademark and unfair competition laws and hot news misappropriation laws.
The publishers of text content that SIIA represents are more interested in making sure that you know that there are convenient ways to comply, than they are interested in pursuing litigation against infringers.
For many organizations, the most convenient way to request permission to copy and distribute text materials is through the publisher of the content. For example, you can often obtain permission from the publisher directly from the publication’s website or by contacting the publisher directly. (In certain circumstances, you can also look for point-of content licensing features on individual online articles, such as Copyright Clearance Center’s Rightslink at www.rightslink.copyright.com or iCopyright at www.icopyright.com.)
Alternatively, to secure permissions from multiple copyright holders in one place, you may prefer to use the clearinghouse services of Copyright Clearance Center, available at www.copyright.com, or iCopyright at www.icopyright.com.
A third alternative is to alter your business model by sending your clients links to the original article, rather than making copies and sending them to your clients. Sending links to the articles, as opposed to the articles themselves, typically does not implicate the reproduction or distribution rights under the copyright law and therefore you do not need a license to do it.
We encourage you and your company to: (1) get further educated on the requirements of copyright law; (2) to investigate your company’s internal business practices; and (3) correct any areas of noncompliance with the copyright law. Additional information on the copyright law and the licensing of copyrighted works is also available at SIIA’s website, at www.siia.net, and the U.S. Copyright office, at www.copyright.gov, or by taking SIIA’s Certified Content Rights Manager course (http://www.siia.net/piracy/seminars.asp#ccrm).
Ultimately SIIA and its publishing members are interested in helping your business succeed and enabling your company to copy and distribute copyrighted materials lawfully. Please feel free to contact us if you have any questions about this letter or need assistance with your compliance efforts.
Senior Vice President, Intellectual Property Policy & Enforcement
Software & Information Industry Association