Copyright Claims Based on User Content

In 1998, Congress passed a controversial law known as the Digital Millennium Copyright Act (DMCA). Through the DMCA, Congress attempted to adapt U.S. copyright law to the challenges posed by digital technologies and the online environment. Although the DMCA as a whole extended the reach of copyright law and is generally regarded as favoring the interests of copyright owners, it also created provisions limiting the liability of certain online actors.

Copyright and the Demise of Newspapers

Neil Netanel, a highly regarded legal scholar, has an interesting post on Balkinization entitled "The Demise of Newspapers: Economics, Copyright, Free Speech." Netanel, who has written extensively on copyright issues, posits that part of the reason for the decline in newspapers stems from Inter

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Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff.


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Ampersand Publishing v. Santa Barbara Independent



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The Santa Barbara Indpendent, Inc.

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United States District Court for the Central District of California, Western Division

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Louis P. Petrich, Robert S. Gutierrez, Thomas J. Peistrup - Leopold, Petrich & Smith, P.C.

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Dismissed (partial)
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In October 2006, Ampersand Publishing LLC, the company that owns the Santa Barbara News-Press, filed a lawsuit against Santa Barabara Independent, Inc., publisher of the Santa Barbara Independent, another local newspaper. The case arose out of Independent editor Nick Welsh's posting of a draft News-Press article in connection with a post on his "Angry Poodle" blog on the Independent's website. The facts are a bit complicated.

Welsh's post appeared on July 14, 2006, during the turmoil following the resignation of several of the News-Press's top editors and a leading columnist because of conflicts between the newspaper staff and Wendy McCaw, the local billionaire who controls Ampersand and essentially owns the News-Press. On July 6, 2006, News-Press reporter Scott Hadley wrote an article about the resignations, but the News-Press chose not to publish it, and instead published a "note to readers" written by McCaw, which discussed the resignations and the departing staff members' supposed motivations for leaving. Apparently in response to this decision, Scott Hadley also resigned from the News-Press. (Since then, over fifty more employees have either quit or been fired. The whole crazy drama is chronicled in the documentary film, Citizen McCaw.)

Welsh's July 14 post reported on Hadley's resignation and criticized the News-Press for publishing McCaw's "note to readers" instead of Hadley's article. Crucially, Welsh included a hyperlink in the blog post to a copy of Hadley's draft article, which an unknown person had sent to the Independent's office the day before. (The link in Welsh's post led to a scanned PDF of the article hosted on the Independent's site). Welsh and the Independent contend that Welsh posted the draft in order to expose and comment upon what he saw as the censorship of an unflattering article. In court documents, they also argue that Welsh's use of the draft "contrasted its fact-based account of the News-Press resignations with the defensive editorializing published by the News-Press." The link and the draft article remained online from July 14 to July 19, at which point the Independent removed them after Ampersand threatened legal action.

Ampersand sued the Independent in federal court in California, claiming that Welsh's posting of the draft article constituted copyright infringement. Ampersand also alleged that Welsh had misappropriated its trade secrets by acquiring and publishing the draft article and by acquiring another draft News-Press article relating to the paper's arbitration proceeding against a former editor. (Welsh and the Independent deny ever obtaining a copy of this latter arbitration article.) Ampersand argued that although the draft articles contained publicly available facts, they also embodied confidential processes and information because they reflected the reporters' labors and ideas of how to investigate and report on an issue. Ampersand also brought claims for unfair competition under California law, intentional interference with propsective economic advantage and contract, and negligent interference with prospective economic advantage and contract.

In September 2007, both parties moved for summary judgment. Among other things, the Independent argued that Welsh's publication of Hadley's draft article for purposes of commentary and criticism was a fair use, that the draft article was not a trade secret, and that it never acquired or published a copy of the arbitration article. Ampersand argued that it was entitled to judgment as a matter of law on its copyright infringement claim. In November 2007, the court granted Ampersand summary judgment on its copyright infringement claim, holding that Welsh's posting of Hadley's draft article was not fair use. The court dismissed Ampersand's trade secret claim based on the Hadley article, finding that the draft was not a trade secret. It reserved decision on the trade secret claim relating to the arbitration article, pending resolution of Ampersand's motion to compel Welsh to answer questions about his source of information about the article. (Welsh had refused to answer these questions, relying on the federal reporter's privilege.) The court also dismissed the unfair competition and tortious interference claims, finding that they were preempted by federal copyright law and the California Uniform Trade Secrets Act.

After this ruling, the only issues remaining were the amount of damages to be awarded to Ampersand on the copyright infringement claim and whether Ampersand had a valid trade secret claim based on Welsh's alleged acquisition of the arbitration article. Related to this latter issue, the parties fought bitterly over Ampersand's motion to compel Welsh to reveal the source of his information about the arbitration article, presenting a bizarre and unprecedented legal battle between two newspapers over application of the reporter's privilege. Before the court resolved the motion to compel or ruled on the final trade secret claim, the parties settled the case. As part of the settlement, the Independent agreed not to challenge the court's ruling that it had violated federal copyright law. The financial terms of the settlement are not public.


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Circumventing Copyright Controls

You may come across digital works that contain copyright controls, such as digital rights management (DRM) technology or a software copy protection system. As a general matter, you should not circumvent these copyright controls, or you may face civil and criminal penalties under the Digital Millennium Copyright Act (DMCA).

Some copyright owners embed a form of DRM into their digital work in order to control its use and distribution. Typically, copyright controls come in two flavors:

Linking to Copyrighted Materials

If you publish your work online, you are already in the practice of using links to enhance your content. The Web's basic architecture relies heavily on the ability of webpages to link to other pages to allow natural navigation between related content. It is hard to imagine the smooth functioning (or even continued existence) of the Web without hypertext links that act as a reference system identifying and enabling quick access to other material.

Works Not Covered By Copyright

You may want to use or incorporate someone else's work into your own. While the works of others may be protected by copyright, there are a class of works that fall outside the scope of copyright law. The following categories of work are not eligible for copyright protection, regardless of when they were created and whether or not they bear a copyright notice.

Copyright Licenses and Transfers

A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. For more information on copyright creation and ownership see the Copyright Ownership section of this legal guide.

Works Owned by Someone Else

In general, if you create a work, you are the copyright owner of the work. However, if you create a work for hire, copyright law recognizes the person who hires you as the owner of the work. Your work may be a work for hire if you create it as an employee or as an independent contractor (a freelancer). However, if you are an independent contractor, the law makes it harder for the hiring party to obtain the copyright ownership of your work.

Copyrightable Subject Matter

Copyright protection automatically applies to "original works of authorship" that are "fixed in a tangible medium of expression." The definition is less complicated than it sounds. If you create a blog post, podcast, or article, your work is covered by copyright the instant it is created in a tangible form, such as on paper, in a blog post, email, or video. You do not need to do anything more, such as signing or filing any papers or provide specific notice to the world that the work is covered by copyright.


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