Web site owners must be on constant guard with copyrighted and trademarked materials, both to make sure competitors don't "borrow" content and to avoid provoking search engines in legal gray areas.
A special report from the Search Engine Strategies conference, August 8-11, 2005, San Jose, CA.
A panel of experts debated a number of hot legal issues during the Copyrights & Trademarks panel at SES. How can web site owners get links to material infringing their copyrighted materials out of search engine results? What recourse do web site owners have if their sites were removed unfairly from search engine results due to an unfair or unfounded accusation of copyright infringement?
Do web site owners have trademark protection rights and responsibilities in search engine advertisements? This session explored these and many other issues, in particular looking at some recent rulings and existing search engine policies.
Search engines & meta tags
Even though few search engines use meta-tag content to determine relevancy, using another entity's copyrighted or trademarked material is still problematic. "Some search engines, especially second-tier search engines, are still using the description information to publish what's in those web sites," said Eric Goldman, Assistant Professor of Law at Marquette University's School of Law. "Taking the metadata from another site with trademarked terms is not only a problem from a legal perspective, but also from a search engine marketer's perspective."
"It could be problematic if a trademarked term shows up in the actual search results, and the site is also similar in its domain name to the trademarked web site to create confusion," Goldman continued. "It still has to be a concern from what is being published in the search results."
"Using someone else's trademark in the metadata, even if it didn't affect the ranking in the search engines, could still be considered infringement," added Matt Naeger, Vice President and General Counsel at IMPAQT. "We have a lot of companies who would still treat this as significant, even if it is not from an operational standpoint."
Web site owners should be careful about using other company names in their meta tags because some commonly used words are actually legally protected. "Terms which are made-up words are very strong trademarks, like a Xerox," said Debbie Wilcox an intellectual property attorney at Baker & Hostetler LLP.
Paid site content
Sometimes web site owners use content from other web sites. "Friendly" sites might contain a link back to the URL with the original content and believe that alleviates their burden of possible copyright infringement. "Unfriendly" sites are ones that use other content that's not their own to improve their own search engine optimization (SEO) rankings or to generate revenue from Google's AdSense, usually without proper authorship attribution.
"Friendly" sites are no less liable than unfriendly sites. "Attribution to the original content source has no impact on potential liability," said Naeger. "If this were copyright infringement, then the attribution would be irrelevant." Before reproducing an author's material, make sure you have permission to reproduce it from the person (or company) who owns the copyright.
RSS feed content is no exception. "People use my RSS feeds to pull in the full content to their own pages for their own AdSense [revenue”," explained Jennifer Slegg of JenSense.com, who is experienced with enforcing legal copyrights. "I run AdSense up on my own site. So my AdSense is up on their sites with their AdSense ads, which puts me in violation of AdSense terms. These are people that want freebie content and try to get away with stealing it."
"You can set up an RSS feed that only puts out summarized content. But we don't have resolution yet on what are those rights—are they broad or are they individual?" said Goldman. "There are those who will say that by having your content posted in an RSS feed, you are giving others the right to go and grab that content for their own sites."
"Until we get resolution, there is a lot of room for ambiguity," he said. "Until we get clarity, there's a lot of room for that to happen."
Protecting graphic images
Text content is not the only content that can be copyright or trademark protected under the law. Graphic images used on web sites can also be protected. "You have to register the same way and its protected under copyright law," said Wilcox.
Web site owners can instruct the search engines to not index their site's graphic images by using the Robots Exclusion Protocol. For example, if all of a site's graphic images are contained in a folder or directory called "images" or "graphics," the robots.txt file can instruct the search engine spiders to not index the files/images in that directory.
However, even though web site owners can remove their own graphic images from a search engine index, the search engine's robot isn't smart enough to remove the same images from other sites.
"That is one of the things going through litigation," said Goldman. "Search engine robots many honor your request, but they are just not smart enough to recognize your copyrighted images. The search engines are in a difficult situation for which they could be liable."
Trademarks in paid search advertising
While a judge's opinion had originally ruled that the sale of trademarked terms as keywords was lawful (in the GEICO case), the lingering issue was the usage of trademark terms in ad text by the search engines. This issue might be going through appeals and cases in other courts dealing with the different aspects of trademark law. Search advertisers should not think that they won't be suspect to a suit themselves just because only the search engines have been the only ones targeted.
"Advertisers themselves could always be challenged by the trademark owner with purchasing trademarked keywords," said Naeger.
"Despite what Google or Yahoo's own policy or actions, that doesn't stop you from taking action against the advertiser with a cease and desist," added Goldman.
"I just go right to the cease-and-desist letter every time," said Slegg. "If you try sending a friendly email, they don't always take it seriously. My objective when sending a cease-and-desist letter is not to get monetary damages. It is just to have the infringers remove my content. I am quite happy to have it end there."
"Cease-and-desist letters look pretty good on their face," said Wilcox, "but when you send a letter you have to decide if you really want to get involved in litigation."
"When you send a letter citing infringement, depending on how it is worded, it can open the door for a lawsuit against you," she added. "So you have to be careful about who you send it to and what you are accusing them of. In a very clear-cut case, all you may need to do is send a letter and just carefully refine a couple of terms."
Tips to protect your intellectual property
The panel offered several tips for dealing with copyright infringers and ensuring that your intellectual property is safeguarded.
Research online. The easiest way is by typing queries into the search engines based on snippets of your content. Don't grab something in the beginning or the end of your copy. Grab a whole paragraph in the middle. Another way is to use tools such as AdGooRoo, which does automated trademark monitoring.
Notify vendors and authorities. When you find infringing content, contact the Digital Millennium Copyright Act (DMCA) agent, contact the web host and contact the search engine(s) in order to take care of it. "Hosting companies typically have their own rules spelled out with site owners are to comply with all copyright laws and that infringing materials will be removed," said Slegg. "A hosting company that finds a site in non-compliance can either remove the offending pages or shut down the entire site."
Notify the infringer. Tell them that their actions will not be tolerated and what they are doing is illegal. Give them a cease-and-desist order, get them to remove the offending material and make them agree in writing to never do it again.
Register your site. Put a copyright notice on each page of your web site. Register your site as a copyright for online works with the U.S. Copyright office for only $30. It gives you special protections and advantages should you ever have to file suit including putting the burden of proof on the defendant and allowing for statutory damages and attorney's fees should you win.
Be proactive. Don't wait around or your right to file suit may expire. Deb Wilcox said, "You do have to register before the actual infringement occurs, or within three months of the first publication (three-month grace period), to receive statutory damages. After that, you could only be entitled to actual damages, which you would need to show and prove. Plus you would have to pay your lawyer."
Grant Crowell is the CEO and Creative Director of Grantastic Designs, Inc., a full-service search engine marketing, web site design, and usability firm.
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