Suppose you own a building and someone sprays a message on the facade. Maybe the message is as benign as just the “artist’s” tag or maybe it’s hate speech or maybe it’s as simple as pasting a sticker promoting some commercial venture. Whether you might find the message offensive or not, you probably wouldn’t hold the building’s owner responsible for the message unless you notified them that the message was there and they didn’t remove it. In NY, it’s illegal for landlords to leave graffiti up and the city will come and remove it for you at no cost. Of course, the city will also fine you once they’ve been told your building is hosting graffiti and you’re doing nothing about it.
(Photo credit: Wikipedia)
You might be wondering what this has to do with your business since you probably don’t own a building. In my mind, the same principle applies when users post links to content on a particular platform or when a news site reports on content hosted elsewhere and links to it. This very notion is at the center of a lawsuit filed by Playboy against Boing Boing. The latter posted a story about someone aggregating all of the Playboy centerfolds. As Techdirt reported:
it’s a blog post titled “Every Playboy Playmate Centerfold Ever.” There’s a very short paragraph that reads:
Some wonderful person uploaded scans of every Playboy Playmate centerfold to imgur. It’s an amazing collection, whether your interests are prurient or lofty. Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.
Boing Boing then linked to the images and a video, both of which were off-site (on Imgur and YouTube, respectively). Playboy is suing for copyright infringement even though it’s pretty obvious that Boing Boing didn’t create or host any of the material. They merely reported on it (fair use, kids). I’ll let the lawyers decide if this is what’s known as a SLAPP action (designed to intimidate and be costly) or whether it has any merit, but it’s not unique. Web hosting companies have been sued for hosting pirate sites that stream copyrighted material.
You might know that under the Digital Millennium Copyright Act (DMCA), Internet service providers (ISPs) may not be liable for copyright infringement from copyrighted material passing through their systems if they take certain steps to police infringement on their site(s). There are some requirements for you to claim this protection, but generally, if you didn’t post it and take it down when you’re told about it, you’re fine. It’s the equivalent of digital graffiti in NYC. Clean up the eyesore when you’re told about it and you’re not penalized.
I can pretty much guarantee that your business has a website. It might have a public-facing comments section or some other place where consumers can post things. You need to monitor and moderate it, and if you’re notified that someone is posting digital graffiti – whether it’s infringing materials or worse – you need to take action. Yes, fair use and the DCMA can protect you up to a point but ultimately you want all of your digital presences to reflect well on you and your brand. Being covered in graffiti doesn’t get you there, does it?
Consult Keith 