Is Your Blog Violating Other Websites’ Terms of Use?

With plenty written about the perils of accidentally infringing on the copyright of images we find online, most of us are well aware we should never use a photo unless the right to use and attribution requirements are crystal clear. And we all know it’s illegal to copy someone else’s content verbatim and present it as our own. But did you know that some companies have language within their websites’ “Terms of Use” that call for anyone citing or quoting any of their content to have explicit permission from them to do so first? Some terms of use even state that links to any other page other than their Home page are a no-no.

Of course, if you read the terms of use of every website you visit, you already know this.

Uh yeah…who does that? And websites don’t typically make it apparent that they even have terms of use (typically the links to them are discreetly positioned in small type at the bottom of websites), let alone language within them that restricts how you reference or link to their content.

As I was digging into this topic, I found very little about it from internet marketing experts or anyone else. Which leads me to believe a lot of people may not realize that mentioning statistics from certain companies or linking to a business’s blog post or extracting a quote from an article—even with attribution—could land you in some trouble.

So, I’ve asked Matthew Landis, attorney at Russell, Krafft & Gruber, LLP, in Lancaster, PA to share his expertise and thoughts on what we should watch out for and what the risks are if we violate—even if unintentionally—a websites’s terms of use.

Q1. How can companies be legally allowed to restrict people from mentioning their content or linking to the pages of their websites that they’ve made publicly available?

A1. The legal basis for these restrictions is twofold.

First, intellectual property rights such as copyright and trademark grant certain exclusive rights to the intellectual property owner.

Copyright protects original works of authorship that are fixed in a tangible medium of expression. Some examples of works covered by copyright are literary or written works, photographs, and graphic works. Copyright is automatically created when the work is fixed—i.e., when the words are saved or when the photograph is taken.

Copyright protection extends to the content on a website—specifically, the combination of words and structure that expresses the information, but not the factual information itself. Someone infringes on another’s copyright when they violate one of the copyright holder’s exclusive rights, such as the right to reproduce, distribute, or create derivative works. The fair use doctrine provides an exception, which allows others to use copyrighted works for certain, limited purposes.

Trademark law serves to protect against consumer confusion with a brand name or slogan and gives businesses the right to protect their commercial identity.

Second, the terms of use may be considered a binding contract enforceable against the user. A valid contract may be created by a user assenting to the terms by clicking “I agree” when creating an account for a website or by checking a box indicating that they have accepted the terms and conditions. Courts generally have accepted these methods of creating “clickwrap” agreements, which is a reference to the shrink wrap agreements that were made effective by a user indicating their assent to the terms printed on the label by breaking the wrapping of boxed software. A “browsewrap” agreement is typically posted on a website and does not contain an express manifestation of assent such as by clicking “I agree.” Courts are generally skeptical of “browsewrap” agreements, but the facts of each case will dictate whether an enforceable agreement has been created.

Q2. Are there any particular types of companies that are more likely than others to have policies restricting use of, referencing, or linking to their content?

A2. It generally depends on the business and its goals. Businesses that conduct research, sell information products, and creatives such as photographers and graphic designers often have some sort of policy in their terms of use that restrict a user’s right to use content hosted on their website.

Q3. Where can you find a company’s policy? Is it always under “terms of use” or could it be elsewhere on their website?

A3. Typically a link will be located in the footer of the site under “Terms,” “Terms of use,” “Terms and Conditions,” “Legal,” “Policies” or a similar link. I’ve also seen shorter statements relating to use of intellectual property (such as a Creative Commons license) or citation guidelines included in a site’s sidebar or included at the bottom of individual blog posts.

Q4. What do companies that restrict use of and linking to their content typically forbid or require?

A4. There are many ways to restrict use of content. First, as mentioned above, copyright automatically protects many types of content and there doesn’t have to be a policy or statement about it in order for the work to be protected. Often times a citation policy will include the exact way to reference the corporate entity that is the owner of the work in accordance with their branding standards. Some entities also refuse the right to use the work unless permission is requested and granted prior to the use.

Q5. Why would companies want to prevent others from referencing their content in their blogs? After all it’s free publicity, right?

A5. Content creators typically want to retain a certain amount of control over their work such as how and where it is used, and in addition often want to ensure that they are fairly compensated for their work.

Alternatively, if use of the work is being given for free, they want to ensure that they are quoted or referenced in a particular way so that users know the source of the information. It also helps the user identify the source of the work so if they wish to utilize the work, they can contact the owner and make appropriate arrangements to use the work.

Q6. What could happen if you mentioned a company’s content or linked to a company’s website without realizing they have a policy in place that forbids it or that requires you have permission first?

A6. It depends on a number of factors, including but not limited to whether any copyright or other intellectual property right has been violated by the use of the content, whether the terms of use constitute a binding contract, and the terms of use that you are subject to.

The first step is often a request to take down the material and a threat of legal action, however depending on the egregiousness of the violation or a company’s tolerance for impermissible use of their content, they may skip this step and demand financial damages or file a lawsuit for an injunction and damages.

The terms of use themselves may also state the remedies that are available to the company. The company often reserves the right to restrict or eliminate access to their services in the case of a violation of the terms.

If the content is being hosted by another service, such as a website provider or social media site, those terms of service will also apply to you as well. Use of these types of sites always includes a provision that you have the legal right to use all of the content that you post on the site, and in order to insulate themselves from liability, the provider of the service has a legal duty to take steps to remove content that is infringing or otherwise in violation of another’s rights.

For example, if you produce a video that is hosted on YouTube and use a popular song as the background music, YouTube may take action against you in accordance with the Terms of Service that you agreed to when you created your account. These remedies include termination of your account and indemnification of YouTube for any claims that arise out of your use of their service.

Q7. Any other thoughts on what blog writers should watch out for and how they should protect themselves when using information they’ve found on other websites?

A7. Familiarize yourself with the basics of copyright and fair use for the purposes of protecting your own content and respecting the rights of others. The Electronic Frontier Foundation has some great free resources called the Legal Guide for Bloggers that contains an overview of the basics.

As a general rule, if you are not the creator of the content, then you don’t have the right to use it unless that right is specifically granted in a license or the use constitutes fair use. If you are using another’s content, familiarize yourself with their terms of service and take the appropriate steps to make sure that you are able to use the content in accordance with their terms and policies.

Final Thoughts

As with any issue of a legal nature, consider talking with an attorney to discuss your concerns about your terms of use or the terms of use of websites that you’re visiting. This blog post is for informational purposes only; it is not a substitute for legal advice specific to your situation.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He is a creative and strategic thinker that works with business owners, entrepreneurs and individuals to prevent and resolve legal problems. Matt regularly writes about legal issues at the Lancaster Law Blog.