The "Web Posse" is a self-styled vigilante group who have employed tactics of fear to shut down businesses on the Web. Their Web site flashes images of a pack of mounted lawmen of the Old West, and brandishes a sheriff's badge reminiscent of the seal of the old San Francisco Vigilante Committee. Members of the Web Posse include not only the self-acclaimed "Soothsayer of Doom," but also a handful of other adult image publishers who are desperate to control the proliferation of their images on the Web, particularly on free Web sites and the Usenet. While no one disputes the right of an image owner to protect its copyright, the bullying tactics of this gang of wayward "cowboys" are clumsy and unsophisticated. From a business and technical standpoint, any reasonable image publisher seeking to protect its work on the Web has at its disposal several more legitimate remedies for protecting its work.

Watermarks and Fingerprints

Watermark and fingerprint technology is an inexpensive and effective way of protecting images, documents, and sound files from illicit copying. Digital watermarks are catching on quickly as digital artists and publishers begin to post and distribute their copyrighted works online. Watermarks provide a cheap means of identifying copyrighted works and notifying the would-be users how to contact the copyright owner to gain permission for use. Spread-spectrum watermarking and steganography are the most common forms of digital watermarking today.

Steganography encodes hidden digital sequences within the binary file of the copyrighted work. The encoded watermark is often referred to as a work's digital signature. Although the watermark is embedded digitally within the image, it remains part of the image even when printed into hard copy, and can be read later by scanning the image into a computer. Watermarks even survive the telefax process. A "fingerprint," on the other hand, is the technical solution for tracing the identity of every copyright infringer who has replicated the protected image.

A "fingerprint" is a recorded digital imprint left by the user. An intelligent fingerprint is a tell-tale script of the violator's location and uses of the copyrighted work. To enforce copyright protection, the owner simply follows the fingerprint trail. A publisher "reads" the fingerprints to determine who used the work, how it was used, and how many times it was used. Accordingly, when a publisher first commits his or her work to a digital format such as scanning it or creating a CD-ROM, the watermark and fingerprint codes are integrated into the image from the outset. This enables intelligent enforcers to locate the wrongdoer who first posted the copyrighted material, even if posted anonymously on vast public databases like the Usenet.

Follow the Guidance of Case Law-Give Adequate Notice to Suspected Violators

Internet Service Providers can be "busted" for unintentional copyright infringement when they have failed to take adequate action upon receiving proper notification of the infringing activity. See the article "ISP Liability: What You Know May Hurt You" in the November 1997 issue of WWWiz. As mentioned in that article, the court in the case of Religious Technology Center v. Netcom held that Netcom, an ISP, was not liable for copyright infringement when it was unaware that its users were engaged in downloading copyrighted materials. Likewise, in the case of Sega v. MAPHIA, the court held that the standards for liability for contributory infringement require that the ISP at least have knowledge that it is "substantially contributing" to an infringement. Accordingly, anyone seeking to legally enforce its copyright to images that proliferate on the Web, at a minimum, must let the service provider know what is going on under its nose. This should take the form of identifying with specificity the copyrighted work, be it an image, sound file, or document. To protect itself from liability resulting from reliance on misrepresentations by overzealous competitors, a prudent service provider should also request verification of registration of the copyright. A publisher who has identified its infringers through a fingerprint process, and has placed all parties on notice of the verified infringing activity, should then consider civil remedies including an injunction. It should not, however, resort to tactics that may backfire and expose itself to civil liability.

What a Publisher Should Not Do

The Web Posse serves as a good example of what a publisher should not do to enforce its rights. Under the California Penal Code, extortion is defined as follows:

"Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, under color of official right.

In other words, misappropriating business from a competitor by using accusations of criminal activity, and threats of reporting to law enforcement sources such as the FBI and the U.S. Attorney, are at least arguably illegal and against public policy. It is one thing to report a crime. It is another thing to use the threats of reporting a crime to obtain an illegitimate business advantage. Likewise, threatening to "fry" someone's server would also constitute the sort of fear contemplated by the California Penal Code. Another risk of overzealous enforcement tactics is liability for interference with the business relationship of the ISP and the suspected infringer.

Under California law, the imprudent, and possibly erroneous, notification of a Web site owner's ISP that its server is going to be "fried" or the FBI will become involved may trigger civil liability if the intervention wrongfully causes a termination of the business relationship between the ISP and the suspected infringer. The torts of "interference with contract" and "interference with economic advantage" also carry with them the possibility of sustaining civil judgments for punitive damages if malice or reckless disregard can be shown. The sort of sentiment set out in the Web Posse emails to the ISP in the example above suggest that the intervention, if wrongful, was made with malicious intent. Simply put, using fear as a tactic to cause an ISP to shut down a suspect business is extremely risky.

Conclusion

There is a right way and a wrong way to do things. Although the protection of copyright on the Web is a concern of all publishers, the methods of enforcement of those rights must stay within the confines of civil and criminal law. While the Internet medium remains relatively unsophisticated in methods of controlling copyright infringement, so it has also become a playground for gangster-like activity by renegade vigilantes with superhero complexes. Neither activity is to be condoned. Resorting to common sense and lawful means of achieving business objectives on the Web is the safest and most prudent way of avoiding courtroom showdowns.

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