1. What Is a Digital
Watermark?
A digital watermark is a set
of data embedded in a digital image, which may be used for a number of
different purposes including copyright protection.[1]
A digital watermark can be detected only by appropriate software. Instead of
Òensuring the authenticity or integrity of documents, as a digital signature or
a digital seal does, a digital watermark aims to identify the origin, author,
owner, usage rights, distributor, or authorized user of an image, video clip,
or audio clip, even if the image or clip has been processed and distorted.Ó [2] The unique reference contained in the
watermark links to a particular database that holds complete copyright contact
information.[3] Thus, the digital information embedded
in the digital watermark helps identify the copyrighted work as original, which
in turn helps prevent piracy of copyrighted works.
Digital watermarking is
relatively a new way of protecting intellectual property, however, the theories
and technologies behind it have been around for a while: computer-based
steganography (cryptography), spread-spectrum communications, and noise theory.[4]
2. Detection and Use of
Digital Watermarks
ÒDigital watermarks are effective only when imperceptible;
[they] cannot be visible when viewing a digitized photograph or audible when
listening to a digitized sound recording. Otherwise, watermarks would obstruct
the quality of the image or the music and, furthermore, facilitate removal by
copyright infringers.Ó[5] Furthermore, in order to be effective,
watermarks must remain recognizable even if the document has undergone several
conversions including copying, editing, scanning, and rescanning.[6]
Although digital watermarks are unlikely to provide protection against theft, they
effectively deter copyright piracy of still images, video and audio files
transmitted over the Internet, intranets, digital satellite and digital
cable. For example, an intentional
attempt to delete watermarks will result in a serious degradation in the
quality of the work, thus, giving viewers or listeners less incentive to pirate
the inferior copy.[7]
Second, Òa copyright owner
may be able to trace the source of an unauthorized copy posted on the Internet,
thereby exposing that user inducing the abuse to liability.Ó[8] Finally, because an imitated work would
be easily identifiable from the original, copyright owner may have more
confidence to distribute his own work on the internet.Ó[9]
3. Application to
Current Copyright Issues.
Proving
online infringement is difficult, and digital watermarks,[10]
(along with other protections afforded under the current copyright laws) can
make it easier for copyright owners to pursue an infringement claim. The following cases, decided prior to
the development of the digital watermark technology, demonstrate its
importance. In Playboy v.
Webbworld, [11] a federal court in Texas found the operator of a web
site liable for copyright infringement where the web site included photographs
that had appeared in Playboy magazine. Apparently, without seeing a need for
further explanation, the court simply stated: ÒThe images retrieved by
[Playboy's electronic infringement research assistant] from the [defendant's]
website are virtually identical to those images which previously appeared in
one of Playboy's copyrighted magazines.Ó[12] In cases, where virtual identity
may not be readily available to an unaided eye, watermarks will play a very
important role in detecting infringement.
In a
similar suit filed by Playboy, Playboy v. Russ Hardenburgh, Inc. in Ohio,[13]
the court found a corporation and its president and sole shareholder liable for
412 infringing graphic image files found on the defendant's computer bulletin
board system. The president was found personally liable, the court said, because
he Òhas the authority, right and ability to control the content of the BBS and
its operations.Ó[14] In June 1997, Playboy announced that it
was using a digital watermark developed by Digimarc Corp.[15]
to keep track of whether photos from Playboy's Web site wind up elsewhere on
the Net.[16]
[1] Lidia
Pedraza, Comment, Entertainment Law Initiative 2000 Legal Writing Contest.
[2] Jian
Zhao, Look, It's Not There: Digital Watermarking is the Best Way to Protect
Intellectual Property from Illicit Copying, BYTE.COM, Jan. 1997 (visited
Feb. 15, 2003) <http://www.byte.com/art/9701/sec18/art1.htm>.
[3]
Rosemarie F. Jones, Comment, Wet Footprints? Digital Watermarks: A
Trail to the Copyright Infringer on the Internet. 26.
Pepp. L. Review 559, 568-569.
[4] See Zhao, Supra, note 2.
[7] Id.
[8] Id.
[10] See A
& M Records, Inc. v. Napster, Inc.,
(2000) 114 F. Supp. 2d 896 (The case
briefly discusses the advantages and disadvantages afforded by digital
watermarks.)
[12] See
id. at p. 1174.
[13] Playboy
v. Russ Hardenburgh, Inc. (1997) 982 F. Supp. 503.
[14] Id. at p. 514
[16] Dan
Goodin, A Market Waiting to Happen,
Intellectual Property Magazine September,
1997.