How an online presence creates responsibility for your customers: the changing landscape of S. Fla. in 2022 and beyond – Intellectual property


The COVID-19 pandemic has forced once physical businesses to switch to an online platform. While consumers rely heavily on what appears to be a seamless online ordering process, the reality of maintaining a competitive advantage while going online is challenging.

Your customers may have recently requested that you defend yourself against an intellectual property infringement claim or other online content and accessibility claims. Unless you specialize in this area of ​​law, this may be your first such case. But is this trend here to stay in South Florida? Trends in intellectual property infringement and web accessibility were stable until recently, with South Florida courts becoming a hotbed for filings. So why this sudden change? The COVID-19 pandemic has forced once physical businesses to switch to an online platform. While consumers rely heavily on what appears to be a seamless online ordering process, the reality of maintaining a competitive advantage while going online is challenging. As businesses face reinvention, they must also remain vigilant to understand legal requirements. Small businesses, local grocers, tourism related stores, restaurants and traditional discount stores that rely on foot traffic have adapted quickly to the changing consumer market. Consider the risks and solutions a business faces with an internet presence.

Grocers, clothing stores, and specialty stores are some of those who can’t afford the time to decipher the best online platform to launch a website. Hence, businesses are turning to e-commerce platforms or other pre-built themes for a turnkey virtual business center. Ecommerce platforms offer options for quick setup at minimal cost. However, a “one-size-fits-all” e-commerce platform is not without its challenges. Be careful: Know the source of all digital content to avoid lawsuits and legal notices from lawyers.

So what should businesses do? Should they bypass DIY options and use more expensive options? No. A critical approach for any business is to learn as much as possible to avoid common mistakes in selecting content for websites and social networks.

The dangers of content

The selection of digital content is essential and requires monitoring. Companies can instruct employees or consultants, often working remotely, to upload content to the company website. Copyright law protects the images, graphics, copy, and the entire website. Make sure your employees and contractors know that “Internet content is not free”. In other words, the business should authorize the images or create the images, not just copy and paste them. Be aware of the source and ownership of photographs, graphics, software code, video, and music. Check the website and confirm that the company can identify the source. An image as simple as an apple posted on a grocery store website may require a license if you find it by searching the Internet.

Some photo portfolio owners target websites that use images without the photographer’s license or permission and will take legal action for copyright infringement.

Legal ramifications

South Florida businesses are finding themselves in court to defend these claims. If a business receives a letter asking them to stop using specific photographs, don’t ignore the letter. Examine it carefully, study the content, and respond. In South Florida courts alone, a search of the federal court record shows that the same plaintiffs have filed multiple lawsuits for unauthorized use of images. The term “copyright troll” is used to describe individuals or entities who enforce the rights of copyrighted works through targeted litigation for financial gain. Copyright trolls rely on the cost of litigation to encourage settlement. Avoid such tangles by checking the source of your images.

When a business receives a claim or summons, it should hire a lawyer, take the claim to its insurer, and familiarize itself with the copyright law. So what is copyright infringement? What are the damages for copyright infringement? How to protect against the infringement of the copyright of others?

Resources and information you need

The website is useful as a guide. A copyright registration defends “original works of authorship fixed on any tangible medium of expression, now known or subsequently developed, from which they may be perceived, reproduced or otherwise communicated, either directly or to the using a machine or device ”. See 17 USC Section 102 (a). The violation can trigger a strict liability action, which means that you can be held responsible for an innocent and unconscious violation. Under Section 102 (a), eligible “author’s works” include literary works, musical works, dramatic works, pantomimes, choreographic works, pictorial and graphic works, sculptural works, sound recordings and even architectural works.

Copyright law defines copyright infringement as an infringement of “any of the exclusive rights of the copyright owner”. Exclusive rights include reproduction, distribution, performance, display of the copyrighted work, preparation of derivative works of a copyrighted work or performance of a copyrighted work using digital audio transmission. Simply put, the music, website content, photographs, graphics, marketing materials, floor plans, and architectural plans all belong to someone.

Suppose your business is careless and uses content without permission; statutory damages can range from $ 750 to $ 150,000 for each infringing work, depending on a list of factors a court may consider. Additionally, successful plaintiffs can claim their attorney fees and costs, often exceeding damages for the actual copyright infringement. So when your business does violate it isn’t a $ 100 fine or slap in the face. Instead, it will amount to thousands to solve a preventable problem.

To compound business exposure, Digital Millennium Copyright Act claims often accompany claims for copyright infringement in photographs and graphics, as they involve the removal of copyright management information (CMI). . The CMI is information that shows the author of a work and other identifying information, such as the year of publication, and often appears as a watermark at the bottom of the work. The court may add to the compensation for the infringing use a compensation for damages between $ 2,500 and $ 25,000 for the withdrawal of CMI. This is also a strict liability violation.

So far we’ve focused on content, but make sure your business is using licensed software as well. If you hire someone to create software or content, you must get an assignment for the job to be hired. Explicitly request ownership from the developer and creator. If you use social media, be careful what you post – music must be licensed. The law treats businesses and individuals differently. A business needs permission to use music.

In short, consider the following checklist for your online business:

  • Own or Authorize Content
  • Own or license the software
  • Don’t sell fakes and know the source of a product you are reselling
  • Confirm that the website contains the correct master key such as privacy statements, terms of use
  • Make sure your website is accessible to everyone and has an accessibility policy and a point of contact for accessibility complaints
  • Confirm that the collected data is protected
  • Sell ​​carefully!

Originally posted by
Daily business review.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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