From
file sharing networks to social networks, copyright organisations are
going after naive users. Could you be the lawyers' next target?
Your
mobile phone is always with you, and uploading photos of a party to
Facebook is effortless. It's only later that some people face the nasty
shock of legal notices, fines, and expensive lawyers' fees. People in
countries around the world are waking up to a whole new side effect of
using Facebook, Twitter, YouTube and other networks. So far, there has
not been any reason to think about the legal and financial consequences
of posting things online. On any typical Facebook profile, there will be
party photos, YouTube videos, or text quoted from the web. These can
earn a user warning fines of up to €15,000 says German media rights
lawyer Christian Solmecke. He agrees that the feared wave of warnings
has not really hit yet, something even other legal experts confirm.
However,
the danger - and this is where all specialist lawyers agree - is that
the industry of lawyers and copyright organisations which has grown
powerful by winning cases against file sharers, will now extend their
efforts to social networks. Users of Facebook and the like are also
spreading copyright-protected content without agreement of the copyright
holder - even if they don't know it. If your profile is visible to
everyone on the Web, it could become an expensive liability, as millions
of people might be able to see a music video, photo or song you post.
Comic heroes and their dedicated fans
One
ongoing trend is that of Facebook users replacing their profile
pictures with those of comic heroes, thus provoking the outbreak of
copyright warnings. So far, nothing has happened. Lawyer Guido Kluck of
K&W Legal confirms that copyright holders have been very tolerant of
such behaviour till now. Still, it is not technically permitted for
users to copy pictures from anyone else's Web sites to decorate their
own profiles. Publishers like DC Comics and Marvel own the copyright for
these images, and only they can decide about allowing their use.
Even
photos of real people can be expensive. Lawyer Hagen Hild tells us of a
case in which a female Facebook user used the photo of a model. On
being contacted, she showed some sense and removed the picture. You can
publish images of celebrities if you are reporting about a current event
- but this sort of reporting is not usually done via social networks. A
post or a comment does not fulfil the criteria.
Posting responsibly
Actual
warnings that Facebook users have received usually involve posts with
embarrassing photos of others which are not removed even on request.
This could happen to anyone, anytime: you might take photos of your
colleagues drinking at a party. If the people in the photo object, they
have the right to ask you to take down the photos. Ideally, you should
not post any pictures without the express approval of the subjects.
“Just taking photos at a party does not give you the right to publish
them later,” says Christian Solmecke.
However,
if the party photographer informs all guests in advance that he will
post their pictures later on Facebook and nobody protests, then legal
experts say that it is implicit consent. In case of any doubt, the
person who is posting the photos on to the Web should be able to prove
that all the photographed people agreed to be published and that he has
the rights to these pictures.
Stricter data protection
The
same goes for other personal data, including email addresses and
telephone numbers. You can allow Facebook to access these details from
your smartphone or email account, in order to help it find you other
acquaintances for you. This is allowed in most countries including the
USA, but some countries such as Germany have stricter data protection
laws under which this is illegal.
A
comparatively newer risk is that of sharing Web videos, which are
usually in the form of embedded YouTube clips. YouTube's terms of use
allow videos to be embedded, appearing exactly like you have embedded
them directly on your own Web site or blog. But if the content of the
videos itself is illegal, it could be trouble. Anyone who posts a link
to a copyright protected video is considered to have infringed the law
and is liable as an abettor.
The
legal position here is not very user friendly, since the law considers
it unimportant whether you yourself have uploaded the videos on YouTube.
Additionally, it might not matter in court whether you as a user
recognised that the video violated copyrights - something that is not
often possible or reasonable. In case of doubt, since the copyright
holders can initiate an injunction, ask for compensation, and even claim
damages - which could amount to a lot of money.
User tracking on Facebook
Before
sending a warning to your postal address, the copyright holder has to
find the user. The ingenious methods used to spy on file sharing
networks and identify IP addresses of file sharers do not work on
Facebook. Instead, they have to turn directly to the company. In many
countries, Facebook can be required to hand over the names and addresses
of anonymous users in case they have broken the law.
But
while rightsholders have been quick to clamp down on suspected pirates
in the past, they are less aggressive when it comes to networks like
Facebook. They are usually satisfied if Facebook deletes the data in
question, and do not press the company to reveal the identity of the
user. Facebook has already received many such takedown notices, but did
not want to reveal the name of the requesting party to us.
If
you post a video of yourself singing or dancing along to a song, or use
it as background music for a video clip, you could be confronted with
licence claims. If you want to cover a song or use it in any other way,
you should ideally obtain permission from the rightsholder as well as
the relevant broadcast licensing bodies.
Apart
from music and videos in posts on Facebook profiles, you will also find
extracts from books and articles, or witty comments from Web sites or
speeches. Even these can turn out to be extremely expensive, as a few
cases from the past prove. Anneliese Kühn, heiress of the artist Karl
Valentin, is one of a number of people who have been sending warnings
out for years now. Lawyers set the value of quotes from Valentin (such
as the well-known “A stranger is only a stranger in a strange land”) at
€10,000. This value, a part of every such warning, depends on the
commercial interest of the claimant. But the actual costs according to a
judicial process are much lower. You are safe using quotes if the
quoted person has been dead for 70 years or more - then his copyright
expires. Protected quotes or text passages can generally be used only if
you characterise them as quotes, cite the source and put in a
context—like an academic work.
Small businesses are vulnerable
If
you are allowed to share content on Facebook only to a limited extent,
then can you sell something? If you have bought yourself a new digital
camera and want to offer your old one in your friends circle, you are
already operating in grey area. As a private citizen you can certainly
sell something if you want. But as soon as you offer several units of
the same object or many similar objects at once, then you are legally a
businessman.
In
this case - especially when dealing with strangers as customers - you
have to give the same information as other web shops: complete contact
details, correct instructions about returns and guarantees, information
about long-distance shipping, and assurances of data protection as well
as the right prices and delivery times. Warning letters between
competing online shops are quite regular but experts believe that this
will increase on Facebook also. However, this concerns mostly commercial
vendors.
It
is uncertain at the moment if a wave of warning letters will start
hitting private users of Facebook, Google+ and other similar services.
Christian Solmecke believes that it is only a matter of time before the
legal industry makes social networks its next hunting ground.
It
took roughly five years from the launch of Napster in 1999 for
opportunists to start hunting down file sharers, a practice which really
took of around 2004. Today, thousands of cases are being filed in order
to flood the courts and force financial settlements. With such a
precedent, Web users should start taking precautions right now.
CHIP
“A comparatively newer risk is that of sharing Web videos, which are usually in the form of embedded YouTube clips.”
(This article was published in the Business Line print edition dated February 13, 2012)
Source : thehindubusinessline
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