Intellectual Property Trolls

Companies with claims to intellectual property ranging from dubious to legitimate are sending out cease-and-desist letters by the bushel lately. Website owners are routinely shaken down for thousands of dollars by firms who have either filed claims on the text or image (or even patented process) in question or who have purchased the rights to the content. Some companies have based their entire business model around this action. Although some lawyers are attempting to come to the rescue, the situation can be dire for some individuals.

One example of such behavior includes the recent dustup between Apple and Loadsys, which claims to hold the patent for mobile in-app purchases. Loadsys has sent out cease-and-desist letters against small app developers, even after coming to an agreement with Apple itself. Apple fired back on behalf of the third-party developers, claiming that their agreement covered developer usage of the in-app purchase process. Loadsys responded by filing suit against several of the developers using the process in question on both Apple and Android platforms.

Getty Images, owner of the popular iStockphoto website, has also jumped into the fray, sending out letters to website owners claiming copyright infringement on unlicensed images. Letters consist of a black-and-white screen printout of a screen grab depicting usage of the image, a letter and FAQ explaining the claim, and an invoice for a settlement that would satisfy the claim.

The owner of a website is liable for usage of copyrighted text, images, or patented processes - even if that content was provided as part of a "work for hire" by a freelance writer or web designer. While UK laws have "innocent infringement" clauses that protect someone who honestly didn't know that the were using someone's protected intellectual property, United States citizens have no such protection. If a website allows users to post content (for example, a message board), the owner of the site itself - and not the original poster - can be held liable.

What you can do:

1. If you have a website designed - or content written for your site - make sure that the pictures (especially) are either unique and original works created just for your website or legitimately purchased from stock photo sites using the proper license for the application. Ask to see documentation proving that fact and make sure that your contract makes the designer or writer responsible for their work.

2. Use services like Copyscape for text and PicScount or TinEye for pictures to search for duplicate content elsewhere on the web. Deal with each finding accordingly.

3. If you are threatened with legal action, always ask the claimant to prove that they really own the rights to the content in question. Ask them to demonstrate that they have in fact been damaged by your use of the content. If they have not registered that work with the government, they cannot seek higher damages and attorney's fees.

4. If you allow users to post text or images on your website, you may well want to spend the $105 to register as a service provider, which limits your liability for such offenses as long as you take it down within 10 days of notice of the violation.