Any lawyer who works in the field loosely known as internet law is confronted sooner or later with a typical situation. A client suggests they should be able to do something because another site does it. While there is a faint whiff of logic to such a proposition, this type of thinking can get you into real trouble when it comes to the law.
Let’s take a look at a well-known scenario online that drives smaller website operators nuts. The scenario involves the Children’s Online Privacy Protection Act of 1998, better known as “COPPA.”
This law states that websites targeting children must follow strict parent notification guidelines prior to collecting information from the children. The law is administered by the FTC, and damages are enormous for failing to comply. Compliance, unfortunately, is expensive as well with one study revealing the average cost of compliance per site is in the $18,000 range.
So, what is the issue with COPPA? Well, smaller website operators look at Facebook and see that it does not comply with COPPA. Given this, why should they be forced to do so? The answer seems to be that COPPA violates the First Amendment in a big way, but the cost of litigating that position would be many hundreds of thousands of dollars if not millions.
Facebook has asserted it will conduct that fight if the FTC ever comes after it. Despite there being reports of over 5 million kids under 13 on Facebook, the FTC has shown no indication of taking the company on. The same is not true for smaller sites that don’t have the financial resources for such a fight. Unfortunately, saying “Facebook does it” isn’t a defense to COPPA compliance prosecutions for these smaller sites.
Posting content from YouTube is a good way to add valuable content to your site. Content of this sort can be tricky, however. The problem is most website owners do not always think through the fact that just because someone else has posted something on a site like YouTube does not mean the piece is clean from a legal perspective. Let’s consider an example.
I see an animated video on solar energy on YouTube that is done well. I decide to embed it on my solar site for visitors to watch. Under the YouTube license, this is allowed. However, I need to look closely at the video to make sure there isn’t any problematic content in it. In doing the review, I realize the video is using a Rolling Stones song, and there could be copyright issues.
At this point, many website operators will assume they can post the video regardless because YouTube has done so. This belief is incorrect from a legal perspective. The DMCA protects YouTube from copyright claims arising from videos uploaded by users. This protection is lost, however, when a person actively searches for, copies and then embeds the video on their site. Yes, this is true even though the “embed” or “share” functions are active on YouTube. Put another way, the fact “YouTube does it” is not a defense to a potential copyright infringement claim for the Rolling Stones song.
I’ve been practicing law for over 20 years. I cannot tell you how many times I’ve heard clients say, “Well, xxx does it.” Maybe so, but this is not a defense to a legal claim.
Law has come to the web for better or worse. Contact me today if you need assistance understanding your obligations as an online business.
Richard A. Chapo, Esq.