IP Tech Knowledgy

Go through your website and delete any old photos and music you do not own or have a license to use. Every company and internet user should be diligent and not post any images, music, or other content unless they are certain they have the rights to do so. Lesson number one is: do not merely pluck material from the internet and use it for yourself.

Lesson number two is that copyright owners can now look back more than three years and obtain damages for a long history of infringement. Last year the Supreme Court ruled that copyright damages can reach back to the beginning of the infringing usage so long as a copyright infringement case is properly brought. This means that historical usage of infringing works can rack up many years of damages. The longer timeline is attractive to copyright trolls looking for a higher value in unauthorized usage. To avoid this growing problem, a business can reduce its risk by going through works already posted on its website and deleting those items, and any links to them, that are not clearly authorized.

A defendant in a claim for long-past copyright damages can still try to argue that the plaintiff should have known about the infringement more than three years earlier. This would trigger the statute of limitations that requires a case to be commenced within three years after the claim accrued, which is usually deemed to be within three years of when the plaintiff knew of, or should reasonably have discovered, the infringement (the “discovery rule”). Some defendants assert the stricter “injury rule,” which requires that suit be filed within three years of the first infringement; however, the trend has shifted away from the injury rule.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com