Friday, April 6, 2012

Are PDF Format Newsletters an "Attractive Nuisance?"

Back in January 2012, Warren Communications sued US Signal (1 12 cv-00138 U.S.D.C.D.C.) for unauthorized copying of their PDF format newsletter and is seeking damages of $19M. Warren publishes the Communications Daily which focuses on regulation of the communications industry.

Lesson Number 1: It Pays to Have a Librarian

Like the  Lowrys v Legg Mason case  which was filed in 2001, a single subscription was purchased by a non-librarian executive and the issues were alleged to have been systematically copied and redistributed throughout the organization.The Lowry case resulted in a $20M judgement for the plaintiffs. Lowry’s Reports, Inc. v. Legg Mason Inc., et al. 271 F.Supp.2d 737, Civil No. WDQ-01-3898 (D. Md., July 10, 2003). In both cases it appears that the intent from the outset was to purchase the smallest license and engage in a wider than authorized distribution.

I have no sympathy for organizations which demonstrate either institutional disregard for copyright law or institutional negligence in failing to have licenses negotiated by competent professionals.  Librarians play important "risk management" roles because they are  familiar with copyright law and  are experienced at negotiating and scaling licenses based on practice needs and expected workflows of the organization.

Are PDF Newsletters A Kind of "Attractive Nuisance"?

American courts developed the concept of the "attractive nuisance"  which allows injured trespassers to sue landowners. The courts have recognized that certain structures on land such as swimming pools are so inherently attractive to children that their presence is equivalent to an express invitation trespass.The courts have ruled against property owners because they knew the structures were both dangerous and irresistibly alluring and yet the owners failed to secure them from trespass. In other words landowners have a duty to protect trespassers from foreseeable injury.

 Is a Newsletter Publisher Negligent if they Distribute an Unsecured PDF Newletter?

It is not that hard to create a secure newsletter. The technology has been around for years. BNA was the first legal publisher to introduce electronic newsletters about 12 years ago. From the beginning, these newsletters incorporated security by requiring passwords or IP recognition in order to gain access to the full text of individual stories. Most legal publishers have followed suit and incorporate security devices into their publication format. These publisher protect their own intellectual property but also protect their readers from their natural impulse to share.

So I am completely baffled as to why there are newsletter publishers that fail to secure their intellectual content. Publishers who publish newsletters in PDF format not only fail to secure individual stories, they fail to secure the entire issue of a newsletter.

Is It Time To Introduce an Attractive Nuisance Defence in Digital Copyright Law?

I posit that in our porous digital world, a PDF newsletter creates a dangerously alluring and completely foreseeable threat to the subscribing organization and to each recipient. It is like sending a "digital timebomb" because a PDF newsletter once forwarded can not be retrieved and the licence holder becomes liable for all subsequent copying and forwarding that may result from that "one false click," 

Does an intellectual property owner owe a duty to it's subscribers to provide more secure products?

One impulsive act - major consequences

In a world of ubiquitous and continuous digital sharing, is the publisher of a newsletter distributed in PDF format creating an intellectual property equivalent of an unfenced swimming pool? Has the publisher created an inherently dangerous, alluring and foreseeable threat to the recipients? It only takes one injudicious and instantaneous impulse to hit "forward" to create an irreversible liability for a law firm.  Once forwarded by any employee,  the subscribing organization is in a position of irreversible financial peril.

Minimizing Risk

For now the entire burden is on the subscriber to prevent unauthorized copying and forwarding of PDF newsletters.
  • The best risk management strategy is to hire and/or empower a librarian versed in copyright, content and licensing negotiations to act as an effective "risk manager."
  • Negotiate the broadest possible license to cover your firm. Always negotiate in good faith and provide an honest disclosure regarding the number of subscribers.
  • Educate lawyers and staff to understand their responsibilities in copyright compliance.
  • Technology can also be employed to reduce risks. IT  network administrators can create rules to trap and block PDF newsletters from being forwarded.

Photos: Creative Commons


No comments:

Post a Comment