Defending Your Brand and Property Online

Issues surrounding fair use, copyright and content aggregation are all very much unsettled in the world of digital publishing, and to a large extent in the courts themselves. There is little legal precedent to guide rulings on online copyright infringement, cases can be expensive, and judges themselves often don’t understand the technologies involved.

But according to R. David Donoghue, litigation partner at Holland & Knight’s intellectual property group, and Camille M. Miller, chair of the intellectual property practice group and co-chair of the intellectual property litigation practice at Cozen O’Connor, all of that can work to a publisher’s benefit when protecting its rights.

That was the thread running through a variety of topics covered during a session on “Online Legal-ease: Fair Use, Copyright and Content Aggregation Issues in the Digital Age,” presented on Monday, March 8 at the Publishing Business Conference and Expo in New York.

“[The] half-life of these technologies is such that, by the time the doctrine is settled, it doesn’t matter,” said Donoghue during the session, but often that means it’s easy to get an ISP service or site to cooperate because the defense is expensive and difficult. In the case of content being shared online without permission, Miller and Donoghue recommend a publisher’s lawyer contact the site providing the service on which the content is being shared, or the Internet service provider of the site itself, and ask it to remove the content or the offending site. “None of them really want to deal with these issues,” said Donoghue, “because it’s expensive.”

Social networks can be more difficult to police because the legal issues go beyond simple piracy. In these venues the danger is often that a user co-opts a handle with your brand name, or makes damaging statements against your company.

While getting such a user suspended is relatively easy, undoing the damage they’ve done, or collecting reparation for it, can be impossible due to the lack of firm legal precedent in such cases.

Miller pointed to a recent study concluding that the vast majority of Twitter’s traffic is “pointless babble,” which, she said, “helps defend against defamation suits” because it makes it easier to argue the statements were not damaging.

Both lawyers advised companies that the best way to defend themselves on social networks was to claim their brands. Even if you’re not going to be active on them, Donoghue said it was important to claim your identity and your space on these increasingly influential outlets.

Thorin McGee is editor-in-chief and content director of Target Marketing and oversees editorial direction and product development for the magazine, website and other channels.