I've written about copyright infringement from the perspective of content owners who want to protect their rights, but what about individual bloggers and small businesses that want to avoid facing claims of copyright infringement from others? Last week I had the chance to speak with attorney David Kluft on that very issue, among others. An associate in Foley Hoag's Boston office, Kluft focuses on commercial litigation, as well as trademark and copyright issues.
He made clear that asking permission before using part of someone else's work is always the safest route for a blogger to take if he or she wants to avoid claims of copyright infringement. An alternative, however, would be to link directly to the original content on an authorized site. Though Kluft pointed out that linking and attribution - or crediting the author by name for the work that is quoted and linked - are not defenses to an infringement claim, but they may go a long way to making a case of fair use.
Fair use is one of the most widely used limitations on copyright. According to 17 U.S.C. 107, using copyrighted material "for purposes of criticism, comment, news reporting, teaching ... scholarship or research is not an infringement." Like almost everything else in copyright law, whether fair use applies depends on the particular circumstances of a given case.
Jurisdictional issues can also provide a defense of sorts in infringement cases - or in any lawsuit, especially where the Web is concerned. He used the example of a libel suit over an article published on the Web that brought his character into question - called him a murderer, perhaps. Kluft pointed out that he couldn't bring the suit in Illinois just because he liked the law in the state or he liked a particular judge there. Even if he read the article in Illinois, that wouldn't be enough. He explained:
I have to show that you either have a general presence in Illinois, like you own a house, a business or land there, or that something about this particular transaction gives Illinois reason to hear the case. ... Maybe if you targeted the article to readers in Illinois, or if you knew in advance that most of your subscribers are in Illinois, maybe in some cases, that might be enough.
But again, it all depends on the circumstances of the case.