SIIA Copyright Education and Enforcement Campaign Letter

Dear Dan:

The Software & Information Industry Association (SIIA) and the publishing companies it represents have become aware of the significant and rampant unauthorized use of their copyrighted content by some companies providing “media monitoring” services.  At the urging of the publishers represented by SIIA, SIIA was asked to conduct an education and enforcement campaign focused on ensuring that media monitoring and evaluation (MME) companies understand and abide by their obligations under the copyright law. 

This letter represents the first step in the campaign.  The fact that this letter was sent to you does not mean that your company is currently being investigated.  This is not a cease and desist letter.  It is being sent to you and other MME companies in the United States and abroad.  The primary purpose is to alert you to the steps needed to comply with copyright law and to understand the consequences of non-compliance.  It is being sent as a courtesy to the MME industry to educate MMEs about copyright law as it pertains to this type of activity and alert MMEs to forthcoming enforcement actions by SIIA against those who choose not to comply with the law.

Accordingly, if your company is compliant with copyright law and has obtained the proper licenses from the relevant copyright owners or their agents, it has nothing to worry about and does not need to fear action by SIIA.  In fact, if you are one of the many MMEs that are playing by the rules and have licenses in place that properly cover access, use, copying and distribution of publishers’ content, then we also want to use this opportunity to thank you for doing so.

However, if your company is not complying with the law or you are uncertain whether your company is complying, consider this letter both:  (1) an opportunity to review your practices further to understand what your company needs to do to become copyright compliant, and (2) formal notice that the publishing industry is concerned about, and focused on, unauthorized use of copyrighted content taking place in the MME industry and soon will be enforcing their rights against those that fail to adequately and timely heed this warning.

Copyright law governs the way that articles can be copied and distributed.  Under the copyright laws of all countries, text materials including magazines, newspapers, books and journals are copyright protected, even if published on the “open web.”  These laws also give the owner-publisher the right to control copying and distribution of those copyright-protected materials (subject to a few narrow exceptions).  In most cases, permission from the copyright holder is necessary before a work can be lawfully copied and/or distributed.  Because MMEs copy and distribute materials to a wide audience, for commercial use, a license is required from the copyright owner-publisher.  This requirement should be part of the cost of doing business for any reputable MME.  In fact, the cost of compliance is significantly lower than the potential cost of infringement.

On the other hand, the consequences of unauthorized use of copyright content for non-compliance can be severe, with damage awards reaching into six figures.  For instance, the remedies available under the U.S. Copyright Act include statutory damages up to $150,000 per violation for willful violations and $30,000 per violation for non-willful violations, plus payment of the copyright owner’s attorneys’ fees.  Title 17 U.S.C. §§ 502-505.  Courts have had little difficulty imposing these substantial damage awards on those who fail to abide by the copyright law.  For example, see Lowry’s Report v. Legg Mason, 302 F.Supp.2d 455 (D. Md. 2004) or Graham v. Haughey, et al., No. 05-612 (E.D. Penn., April 2, 2008), where courts ordered the defendants to pay close to $20 million each for internal copying of copyrighted content.

In addition to potential liability for the unauthorized use of copyright content, MMEs also run the risk of violating other federal and state laws, such as trademark and unfair competition laws and hot news misappropriation laws not to mention the risk of reputational injury for failing to respect the copyrights of others. 

The publishers that SIIA represents are more interested in making sure that MMEs know that there are convenient ways to comply and that they did so, rather than pursuing litigation against MMEs who are using its publishers’ copyrighted content without the necessary authorization.  However, you should be aware that the publishers that SIIA represents will not hesitate to litigate against those companies that fail to respect the copyrights of the publishers.  And courts do not look favorably on companies that willfully violate copyright law.

Unfortunately, not all organizations respect these publishers’ copyrights.  Some organizations willfully ignore publishers’ right to earn income from the valuable copyrighted content they publish.  The organizations that become SIIA targets are engaged in systematic, business-related copying and distribution that is not remotely close to being a “fair use.”  Why should these organizations – some of whom may even be your competitors – have an unfair business advantage by free-riding on the publishers’ hard work and not paying for content that other good actors are paying for.  Distributing information such as press clips is a traditional part of PR, but everyone needs to understand how they can operate in a manner that respects copyrights.

The most convenient way to request permission to copy and distribute text materials is through the publisher of the content.  You can usually obtain permission from the publisher from the publication’s website or by contacting the publisher directly.  Alternatively, to secure permissions from multiple copyright holders in one place, you may prefer to use a clearinghouse service, such as Burrelles Luce at http://www.burrellesluce.com/CAP, which provides redistribution licensing rights for MMEs.

We encourage you and your company to: (1) get further educated on the requirements of copyright law; (2) investigate your company’s internal business practices; and (3) take corrective measure as necessary to comply with the copyright law.  Additional information on the copyright law and the licensing of copyrighted works is also available at SIIA’s website, at www.siia.net, and the U.S. Copyright office, at www.copyright.gov.

Ultimately SIIA and the publishers it represents are interested in helping your business succeed and enabling your company to copy and distribute copyrighted materials lawfully.  Please feel free to contact us if you have any questions about this letter or need assistance with your compliance efforts. 

Sincerely,

 

Keith Kupferschmid

General Counsel and SVP, Intellectual Property
Software & Information Industry Association


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