Reuses other publishers' content, in the United States

248 U.S. 215 (1918)

• Do not copy factual news content from a competitor's public bulletins and distribute it to your own customers: the Supreme Court held that was actionable unfair competition (misappropriation), even though bare facts are not copyrightable.
• Expect hot-news claims to be treated as state law today: the Supreme Court later abandoned federal common law in Erie R.R. v. Tompkins (1938), leaving them to state law and Copyright Act preemption analysis.

15 U.S.C. 1052(a) · Read the law's page

• Do not expect to register on the principal register a name, logo, or other mark that consists of or comprises matter which may falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols (s. 1052(a)); this is a ground for refusing registration, not a rule against using the mark.

17 U.S.C. § 102 · Read the law's page

• Treat an original work of authorship fixed in a tangible medium of expression, in one of the listed categories such as literary works, as protected by copyright (s. 102(a)).
• Do not assume that copyright in a computer program protects an idea, procedure, process, system, method of operation, concept, principle or discovery it embodies, in whatever form it is described, explained, illustrated or embodied (s. 102(b)).
• Read section 102(b) for a computer program as the House report does: the expression the programmer adopted is the copyrightable element, and the actual processes or methods the program embodies are outside the scope of the copyright law.

17 U.S.C. § 107 · Read the law's page

• You may reproduce copyrighted content without a license only where the use is fair use, which courts weigh on four factors: the purpose and character of the use (especially transformativeness), the nature of the work, the amount and substantiality taken, and the effect on the market for the original.
• Do not run commercial, non-transformative snippet aggregation that substitutes for licensed feeds: a court held that fails fair use (Meltwater).
• You may be able to rely on fair use for transformative indexing and limited display (Google Books, Perfect 10).

17 U.S.C. § 301 · Read the law's page

• Expect any state-law right equivalent to the exclusive rights under the Copyright Act, in works fixed in a tangible medium, to be preempted.
• Expect most state hot-news misappropriation claims to be preempted unless they contain genuine 'extra elements' beyond copying and redistributing protected expression (Barclays Capital).
• You need not obtain a press publisher's authorisation under federal law: there is no US federal press-publisher neighbouring right, the EU-style ancillary copyright of Article 15 of the DSM Directive has no counterpart, and § 301 blocks states from creating functional equivalents.

17 U.S.C. §§ 105, 302 and 511 · Read the law's page

• Do not assume you need the Government's permission to reproduce a work of the United States Government: copyright protection under title 17 is not available for it (s. 105(a)).
• Get permission from the owner before you reproduce a copyright that the United States Government holds by transfer, whether by assignment, bequest, or otherwise (s. 105(a)).
• Treat the covered author, not the Government, as the owner of the copyright in a literary work produced by a civilian faculty member of a covered institution in the course of employment there for publication by a scholarly press or journal (s. 105(b), (d)).
• Count a work created on or after January 1, 1978 as protected for the life of the author and 70 years after the author's death, and a joint work not made for hire for the life of the last surviving author and 70 years after that author's death (s. 302(a), (b)).
• Count an anonymous work, a pseudonymous work, or a work made for hire as protected for 95 years from the year of its first publication or 120 years from the year of its creation, whichever expires first (s. 302(c)).
• Do not rely on section 511(a) to sue a State or State instrumentality for infringement: the Supreme Court held that Congress lacked authority to abrogate the States' immunity from copyright infringement suits in the Copyright Remedy Clarification Act (Allen v. Cooper (2020)).

17 U.S.C. §§ 106 and 501 · Read the law's page

• Get the copyright owner's permission before you reproduce a copyrighted work in copies or phonorecords, prepare a derivative work based on it, or distribute copies or phonorecords of it to the public by sale or other transfer of ownership, or by rental, lease, or lending, unless sections 107 through 122 allow the use (s. 106(1) to (3)).
• Get the copyright owner's permission before you publicly perform or publicly display a work of a kind clauses (4) and (5) of section 106 name, or publicly perform a sound recording by means of a digital audio transmission, unless sections 107 through 122 allow the use (s. 106(4) to (6)).
• Treat transmitting or otherwise communicating a performance or display of a work to the public by any device or process as performing or displaying it publicly, whether the recipients receive it in the same place or in separate places and at the same time or at different times (s. 101).
• Do not violate any of the exclusive rights provided by sections 106 through 122, or import copies or phonorecords into the United States in violation of section 602: anyone who does is an infringer, including a State, a State instrumentality, and a State officer or employee acting in an official capacity (s. 501(a)).
• Do not induce or encourage users to infringe, and do not profit from their infringement while declining to exercise a right to stop or limit it: the Supreme Court describes the first as contributory infringement and the second as vicarious infringement (MGM Studios v. Grokster, 545 U.S. 913 (2005)).

17 U.S.C. §§ 109 and 117 · Read the law's page

• You may sell or otherwise dispose of the possession of a particular copy or phonorecord you own that was lawfully made under title 17 without the copyright owner's authority; this does not extend, unless the copyright owner authorizes it, to a person who acquired possession from the copyright owner by rental, lease, loan or otherwise without acquiring ownership of it (s. 109(a) and (d)).
• Do not dispose of the possession of a copy of a computer program by rental, lease or lending, or by any act in the nature of rental, lease or lending, for direct or indirect commercial advantage unless the owner of copyright in the program authorizes it (s. 109(b)(1)(A)).
• That rental limit does not reach a program embodied in a machine or product that cannot be copied during its ordinary operation or use, a program in a limited purpose computer designed for playing video games, or lending for nonprofit purposes by a nonprofit library that affixes the prescribed copyright warning to each copy (s. 109(b)(1)(B) and (2)(A)).
• You may make another copy or adaptation of a computer program you own a copy of, without infringing, only as an essential step in using the program with a machine and for no other use, or for archival purposes only, and you must destroy all archival copies if continued possession of the program ceases to be rightful (s. 117(a)).
• Transfer exact copies made under section 117 only along with the copy they were made from and only as part of the transfer of all rights in the program, and transfer adaptations made under it only with the copyright owner's authorization (s. 117(b)).
• The owner or lessee of a machine may make a copy of a program solely by virtue of activating the machine that lawfully contains an authorized copy, for maintenance or repair of that machine only, if the copy is used in no other manner, is destroyed immediately after the maintenance or repair is completed, and any part of the program not necessary to activate the machine is not accessed or used other than to make the copy (s. 117(c)).

18 U.S.C. Section 2710 · Read the law's page

• Obtain the consumer's informed, written consent before disclosing personally identifiable information about the consumer's video-viewing history to a third party.

25 U.S.C. 305e · Read the law's page

• Do not, directly or indirectly, offer or display for sale or sell a good, with or without a Government trademark, in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States (s. 305e(b)).

105 F.3d 841 (2d Cir. 1997)

• Expect a hot-news misappropriation claim to survive Copyright Act § 301 preemption only where the plaintiff gathers time-sensitive information at a cost, you free ride on that effort in direct competition with its product or service, and free riding by others would substantially threaten the information's existence or quality (the Second Circuit's five-part test).
• Gather facts with your own resources rather than copying the plaintiff's own product: the court held that Motorola and STATS, which collected game scores for their pager themselves and did not free ride on the NBA's product, defeated the claim as preempted, and vacated the injunction.

17 U.S.C. 512 · Read the law's page

• Register a designated agent with the Copyright Office through its online registration system, and post the agent's name, address, phone number and e-mail address on your website in a location the public can reach, to keep the section 512(c) safe harbour for content your users store. Keep both current, and renew the registration before it expires three years after it is registered.
• Remove or disable access to material expeditiously once you have actual knowledge that it or an activity using it is infringing, or become aware of facts or circumstances from which infringing activity is apparent, to keep the section 512(c) safe harbour.
• Respond expeditiously to remove or disable access to material identified in a notification of claimed infringement that substantially meets section 512(c)(3)(A): a written communication to your designated agent with the complainant's signature, identification of the work and of the material and its location, contact information, a good faith statement, and a statement of accuracy and authority under penalty of perjury. If a notification lacks some elements but substantially includes the identification of the work, the identification of the material and the complainant's contact information, promptly try to contact the complainant or help them send a compliant notification, because otherwise the incomplete notification is considered in deciding whether you have knowledge or awareness.
• Do not receive a financial benefit directly attributable to infringing activity that you have the right and ability to control, to keep the section 512(c) and 512(d) safe harbours.
• Adopt and reasonably implement a policy that terminates, in appropriate circumstances, the accounts of subscribers and account holders who are repeat infringers, tell subscribers and account holders about it, and accommodate and do not interfere with standard technical measures, to be eligible for any limitation on liability in section 512.
• When you remove material a subscriber stored, promptly take reasonable steps to notify the subscriber. On a counter notification that meets section 512(g)(3), promptly give the complainant a copy and say you will replace the material in 10 business days, then replace it not less than 10, nor more than 14, business days after receipt unless your designated agent first receives notice that the complainant has filed an action seeking a court order to restrain the subscriber. This keeps the section 512(g)(1) protection from claims based on the removal.
• To use the section 512(d) safe harbour for a directory, index, reference, pointer or hypertext link, act expeditiously to remove or disable access to the material once you have actual knowledge or awareness that it is infringing, and respond expeditiously to a notification that identifies the reference or link to be removed.
• To use the section 512(b) safe harbour for automatic caching, transmit the material to later users without modification, follow the refresh rules the originating person sets under a generally accepted industry standard protocol, do not interfere with technology that returns usage information to the originating person, honor any access condition such as payment or a password, and, for material the originating person made available online without the copyright owner's authorization, respond expeditiously to remove or disable access to it on a notification that meets section 512(b)(2)(E).
• To use the section 512(a) safe harbour for transmitting, routing or providing connections, let a person other than you initiate the transmission, carry it out through an automatic technical process without selecting the material, do not select the recipients except as an automatic response to another person's request, keep no copy accessible to anyone other than the anticipated recipients or for longer than reasonably necessary, and do not modify the content.
• On receipt of a section 512(h) subpoena that a district court clerk issued to identify an alleged infringer, expeditiously disclose to the copyright owner, or the person the owner authorized, the information the subpoena requires, to the extent you have it, even if you have not responded to the notification.
• Do not knowingly materially misrepresent, in a notification or a counter notification under section 512, that material or activity is infringing or that it was removed or disabled by mistake or misidentification.

17 U.S.C. § 1202 · Read the law's page

• Do not intentionally remove or alter copyright management information, meaning the title, the names of the author and copyright owner, the copyright notice and the terms and conditions for use, on works you copy, unless the copyright owner or the law authorizes it.
• Do not distribute, import for distribution or publicly perform works or copies, or distribute the information itself, knowing that copyright management information has been removed or altered without authority; for works and copies the text also requires that you know, or for civil remedies have reasonable grounds to know, that doing so will induce, enable, facilitate or conceal an infringement.
• Do not provide or distribute false copyright management information with the intent to induce, enable, facilitate or conceal infringement.

412 F. Supp. 2d 1106 (D. Nev. 2006)

• Expect caching of web pages for search results to be defensible: the District of Nevada granted Google summary judgment, holding that it did not directly infringe, that the caching was fair use, and that the DMCA's system-cache safe harbor barred damages.
• Expect an implied license to be found where a site owner knew it could stop cached links with the 'no-archive' meta-tag and did not use it: the court so held against this author and held him estopped from suing.
• Do not assume the same result where a site has used the 'no-archive' meta-tag.

508 F.3d 1146 (9th Cir. 2007)

• Treat in-line linking to, or framing of, an image stored on another site's server as not displaying that image yourself: on appeal from a preliminary injunction, the Ninth Circuit held a person displays a photographic image only by using a computer to fill a screen with a copy fixed in its memory (the 'server test').
• Show search-result thumbnails as pointers to the source: the court concluded Google was likely to prove its thumbnails a highly transformative fair use, because a search engine turns an image into a pointer directing a user to a source of information.
• Do not treat the ruling as settling secondary liability for linking to infringing sites: the court remanded that question.

650 F.3d 876 (2d Cir. 2011)

• Expect a hot-news misappropriation claim over reporting others' facts to be preempted by the Copyright Act: the Second Circuit so held for a news service that reported financial firms' analysts' trading recommendations, and reversed the judgment on that claim.
• You may collect, collate and disseminate facts that others make news of, if you attribute them to their source: the court held that is not free-riding, and that a firm's ability to make news by issuing a recommendation gives it no right to control who breaks that news and how.
• Read NBA v. Motorola's holding on hot-news preemption as binding, but not its various explanations of its five-part approach.

931 F. Supp. 2d 537 (S.D.N.Y. 2013)

• Do not send customers excerpts of scraped news articles as a subscription service where you automatically take the lede of every story and your reports act as a substitute for the publisher's own or licensed news sites: the court granted summary judgment for the Associated Press and held that copying was not fair use.
• Do not treat a site's failure to block your crawler with robots.txt as a license: the court held it creates no implied license for a crawler that is not making a fair use, and also rejected equitable estoppel and copyright misuse defenses.

804 F.3d 202 (2d Cir. 2015)

• You may rely on fair use for mass digitization and limited snippets in search results where the use creates a new public benefit (such as full-text search or corpus analysis) without substantially substituting for sales of the originals: the Second Circuit so held for Google's scanning of tens of millions of books.
• Expect a commercial or profit motive alone not to defeat fair use: the court held it does not justify denying the defense.
• You may give each library a digital copy of the books it supplied: the court held that is not infringement.

31 F.4th 1180 (9th Cir. 2022)

• Expect the Computer Fraud and Abuse Act case against scraping public webpages to be contested: affirming a preliminary injunction for the scraper, the Ninth Circuit found a serious question whether 'without authorization' reaches only computers where authorization, such as password authentication, is generally required.
• Do not read the ruling as clearing scraping under other laws: the court noted that state-law trespass to chattels claims may still be available, and that copyright infringement, misappropriation or breach of contract claims may also lie.