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Content, Writing and Copyright Forum

This 31 message thread spans 2 pages: 31 ( [1] 2 > >     
A Guide To Protecting Your Content
What To Do If Your Copyright Is Infringed
digitalghost




msg:925339
 7:45 pm on Sep 5, 2005 (gmt 0)

This post is not intended to serve as legal advice. In all legal matters, it is best to consult with an attorney prior to taking action.

This post describes what you should do if you discover that your website’s content has been copied or reproduced without your permission. It describes actions you may take to protect your interests.

Note:All original material posted on the web is protected by copyright. If you take the additional step of registering that copyright [copyright.gov] you may be afforded additional awards if your copyright is infringed.

    Before proceeding be certain that the written material is, indeed, original. If you produced the work yourself then you know the extent of its originality. Be mindful that if the work isn’t completely original that your complaint may trigger a retaliatory complaint. More often the need to confirm originality before proceeding arises when someone hires a copywriter. Check to make sure that your copywriter didn't copy or plagiarize someone else's content. This is extremely important if you have to file a DMCA Notice Of Infringement.

    Once you have confirmed originality You will need to gather information, including:

    1. Who the infringer is

    2. Where the site is hosted

    3. Exactly what infringements have occurred

    Now you must decide whether you want to contact the infringer by email with a Cease & Desist, (C&D Sample Letter) [builder.com.com] or simply start with the DMCA Notice of Infringement. Note: A Notice Of Infringement to search engines will not force the infringer to remove the content from the site. The search engines will simply remove the site listing from the search engine results.

    Note: If the infringment is innocent an email may be all that is needed.

    Cease and Desist Letter Or Email

    A Cease and Desist is an email (or letter) advising the recipient of;

    1) your claim of ownership rights or copyright;

    2) your claim of exclusive rights to publish and license use, which you allege have been violated;

    3)your demand that the recipient immediately remove all known copies of your work and that the infringer report knowledge of further reproductions; and,

    4)your demand that the infringer promise to never do the same again.

    In many cases the matter will be resolved simply by a properly worded cease and desist email or letter. If the letter arrives on official letterhead all the better as it enforces the appearance that the source of the letter is serious about enforcing their rights. Keep the tone of the initial contact businesslike: Stick to the essential facts.

    Familiarize yourself with the Digital Millennium Copyright Act [copyright.gov] !PDF FILE

    File a DMCA Notice Of Infringement with all the major search engines.

    Follow the instructions provided by the search engines for filing DMCA infringement notices. Below you will find links to each search engine's DMCA page.

    Google's DMCA Page [google.com]

    Yahoo's DMCA Page [docs.yahoo.com]

    MSN Search DMCA Page [microsoft.com]

    Ask's DMCA Page [sp.ask.com]

    AOL's DMCA Page [site.aol.com]

    After you've filed DMCA Notices of Infringement, you may want to file a notice with the host of the infringer's website (recommended). Look for the webhost's Terms of Service and Acceptable Use Policy (AUP). Often you will find instructions for filing DMCA Notices as well as contact email and instructions for filing. Note infringements by URL. It is often helpful to use Internet Archive [archive.org] to provide comparison dates.

    You may be contacted by the search engines and the webhost and asked to provide more information. Reply to those requests promptly.

    But How Do I Know If My Content Has Been Taken?

    The simplest method to protect your web copy is by copying portions of your text and pasting that portion of text (in quotes) into your favorite search engine. If your text has been copied by others, the search engine results will highlight that text in their SERPS and/or provide links to pages using that text.

    If you suspect plagiarism there are commercial software solutions available that aid in detection. Software can be helpful if you suspect large portions of your web copy to be particularly prone to infringement.

    What About Damages and Legal Recourse?

    If you seek monetary damages consult with an attorney that specializes in copyright law. Keep in mind that there are benefits to formally filing for copyright protection, including the right to claim “statutory damages” – which means that you will not be required to prove actual monetary loss, which can be quite difficult. You may also be entitled to an award of counsel fees for each violation that is enforced. Therefore, formally filing for copyright protection may also make it easier to secure the assistance of an attorney.

With special thanks to Webwork, jdMorgan and rogerd for additional insight, editing and revisions.

 

BigDave




msg:925340
 10:02 pm on Sep 5, 2005 (gmt 0)

Very good. Though many of the steps only apply if the infringement takes place in the United States.

I would also recommend familiarizing yourself with what is and is not copyrightable, as well as doing a Fair Use analysis of the copying somewhere in there.

Do it yourself DMCA notices allow you to play lawyer, but playing lawyer brings with it certain responsibilities and liabilities. If you are going to do it, make sure you do it right.

mack




msg:925341
 3:32 pm on Sep 6, 2005 (gmt 0)

Very good post,

I recently found a site using my material and it took a long time to locate the importaint information from arround the web. You seam to have done a great job of presending it all from one location.

Mack.

andye




msg:925342
 3:49 pm on Sep 6, 2005 (gmt 0)

It's also worth considering registering your trademark. I've recently done this, and here in the UK it's an inexpensive (couple of hundred £) and straightforward process. You can get all the info you need from the patent office.

best, a.

rogerd




msg:925343
 4:04 pm on Sep 6, 2005 (gmt 0)

Nice summary, DG.

Sending the C&D to a broad spectrum of site e-mails sometimes helps, i.e., all WHOIS contacts, the web host, any company officers listed on the site (of course, the typical content rip-off site rarely publishes their corporate structure), the webmaster address, etc. If the site has advertising or affiliate links, I'd copy the advertisers and affiliate companies, too.

mack




msg:925344
 4:11 pm on Sep 6, 2005 (gmt 0)

My dilema was I knew my content had been ripped off, but I didn't want to go further than a C+D at first. My main reason was the site operator may have paid for the content in good faith, they where then riped pf by a copywriter.

8 weeks later and they have still not so much as replied to any of my emails. 7 sent so far, to as many email addresses as I could find on the site and hois.

To be honest all I ever wanted was the content removed. The though of financial compensation didn't come into play (yet). But how can you go about this beyond C+d and DMCA? if a company refuse to eben comment then there is only so far you can go.

Mack.

stinkfoot




msg:925345
 4:13 pm on Sep 6, 2005 (gmt 0)

>You may also be entitled to an award of counsel fees for each violation that is enforced.

The turm MAY is very imporant here. If you have the money to purchase the sevices of a copywrite lawyer you MAY just change the detail on your page to save the possibility of loosing 100k

designhaus




msg:925346
 4:54 pm on Sep 6, 2005 (gmt 0)

People are welcome to steal my content as far as I am concerned. It ruins their rankings in Google and places my site in an authority position. I have first hand experience with this scenario both ways in it being of benefit to myself and also very detrimemal to one of my sites when I copied a number of pages of text of a friend of mines site (with his permission)

Webwork




msg:925347
 5:00 pm on Sep 6, 2005 (gmt 0)

From [copyright.gov...]

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

From [copyright.gov...]

§ 505. Remedies for infringement: Costs and attorney's fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.


Webwork




msg:925348
 5:04 pm on Sep 6, 2005 (gmt 0)

[copyright.gov...]


§ 504. Remedies for infringement: Damages and profits4
(a) In General. - Except as otherwise provided by this title, an infringer of copyright is liable for either -

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. - The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. -

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(d) Additional Damages in Certain Cases. - In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.


klauslovgreen




msg:925349
 6:59 pm on Sep 6, 2005 (gmt 0)

What about a situation where one can see from log files that content is being ripped in large portions but nor re-published (yet) - literally 500,000 hits on our server trying to rip a company database to use e-mail addresses for spam) - where should such acts be filed? Spamcop?

victor




msg:925350
 7:12 pm on Sep 6, 2005 (gmt 0)

A quick question -- if I added something like: "Unauthorised reproduction is strictly forbidden. We will charge USD1000 per day licence fee for any unauthorised reproduction in addition to our legal costs and damages"

Would a court look kindly on awarding us those fees?

BigDave




msg:925351
 7:43 pm on Sep 6, 2005 (gmt 0)

"Unauthorised reproduction is strictly forbidden. We will charge USD1000 per day licence fee for any unauthorised reproduction in addition to our legal costs and damages"

Would a court look kindly on awarding us those fees?

Nope, on any number of counts.

First, you can not set a license fee on unauthorized use. If you are setting up license terms, you MUST be authorizing it. You cannot get both damages and that fee.

Imagine if you will, the possibility that the judge would throw out the copyright claime because you licensed it. He might hit you with attorney's fees for the copyright part of the claim that you just lost.

Then that just leaves you with a contract claim. Your "contract" is just one line, with no additional terms or guarantees of performance or limitations on use. You have no signature or even click through agreement.

In fact, since you now have a contract, however lousy it may be, you might be opening yourself up for counterclaims.

Okay, so that would be worst case, and not that likely to happen.

What is a lot more likely is that the judge will just throw it out because you are trying to grant yourself something that copyright law does not allow you to grant yourself. It is never a good idea to annoy a judge like that.

The reality is that all the other party has to say is that they did not accept the terms of that license. It will instantly revert back to copyright law.

victor




msg:925352
 7:52 pm on Sep 6, 2005 (gmt 0)

Thanks, That's useful.

Webwork




msg:925353
 8:54 pm on Sep 6, 2005 (gmt 0)

BigDave, whilst I appreciate your efforts I have to ask: Can you cite statute, case law, unreported court opinions, learned treatise, authoritative opinions in legal journals, or personal experience in support your guidance and/or opinions?

For example, if your proposition that someone has to actually "agree" to the terms and they can avoid accountability by simply saying "Oh, hell no, I never agreed to any of that" then - if we're handling this analysis by simple force of reason - aren't you saying that all the TCUs and TOSs in the world are little more than tissue paper, which flimsy paper may be used for wiping one's bottom if one so wishes?

I'm not quite certain I would agree.

rogerd




msg:925354
 9:00 pm on Sep 6, 2005 (gmt 0)

Non-lawyer comment: One technique that might work in terms of establishing damages is to publish a rate chart covering republication of your content, as well as specifying what the entity must do to gain permission and make payment. I've been on any number of sites that have a "license this content" link that provides such information. Then, if someone rips off your content, you have a realistic starting point for damages (particularly if you can actually collect some legitimate fees). In addition, you have provided a clear and legal way for someone to use your content (while making it clear that it isn't free for the taking).

Will any of this matter much? Probably not. The majority of content-stealing sites are run by entities that would be hard to drag into a US or EU court, much less collect damages from should they be awarded. In most cases, shutting the site down (or at least getting your content removed) and/or getting the duplicate stuff thrown out of search engines is the best you'll be able to accomplish.

Leosghost




msg:925355
 9:58 pm on Sep 6, 2005 (gmt 0)

Something weird in the editorial dept happened since when I first saw this and now..DG ..doesn't look like the same post at all ...?
Have to read post # 1 all over again?..Pourquoi c'est arrivé ça?..plus the others ..? ..

Leosghost




msg:925356
 11:22 pm on Sep 6, 2005 (gmt 0)

Amongst other sources I would suggest flagging everything "jim" writes and all the threads in that area and thinking laterally..

Not always living in the same zone how ever much you might want to be a goodie ..

And how to use proxies and tech silently ...

( and yes I kow that's pushing the limits here a little ..but
But how can you go about this beyond C+d and DMCA? if a company refuse to eben comment then there is only so far you can go.

's far as it takes...;)

Expecting the usual flack from the usual sources ...SO?

[edited by: digitalghost at 12:04 am (utc) on Sep. 7, 2005]
[edit reason] TOS [/edit]

digitalghost




msg:925357
 12:03 am on Sep 7, 2005 (gmt 0)

>>doesn't look like the same post at all .

Comparing the post to the copy on my drive, it's the same. Verbatim. Is that good or bad? ;)

BigDave




msg:925358
 12:59 am on Sep 7, 2005 (gmt 0)

For example, if your proposition that someone has to actually "agree" to the terms and they can avoid accountability by simply saying "Oh, hell no, I never agreed to any of that" then - if we're handling this analysis by simple force of reason - aren't you saying that all the TCUs and TOSs in the world are little more than tissue paper, which flimsy paper may be used for wiping one's bottom if one so wishes?

Yes, if they are not agreed to, then they are little more than tissue paper, and we revert to the undelying law.

Let's see, what is the legal definition of a "license". I'm sure you have some of those law dictionaries around.

It is the granting of permission to do something.

It is not a list of restrictions and penalties, if it is absent any permissions granted. The restrictions are in relation to the permission that has been granted.

If it is a permission that you are able to grant, then there must be some underlying right that you have been granted by law otherwise your grant is pointless, and no license is needed.

In other words, the license needs to grant me something that I would not otherwise be allowed to do. If I do it, absent having a license, I am violating the law.

So if you post TOS that restrict my reading of your *publically available* web pages, which I would otherwise have a right to do, I easily say in court that I did not agree to the terms and that it should revert to copyright law. Then you have to prove that I was violating copyright law by reading your publically available pages.

The only two ways that I know of to actually have the courts consider you to have agreed to something is for you to have actually agreed, or gone to grat lengths to bypass the mechanism by which you agree (i.e. hacking the code so that the EULA does not come up). If you know otherwise, please show the caselaw.

And if you actually read the EULA for most software, the penalty for violating a license is that the license to use the software is withdrawn, so if you continue to use it, you are in violation of copyright.

Webwork




msg:925359
 3:44 am on Sep 7, 2005 (gmt 0)

Are "browse wrap" TOS agreements binding? Canadian courts appear to think so. [cle.bc.ca]

There's a dearth of U.S. cases on point, though an early case - applying State contract law to click-wrap licenses for the sale of products (UCC law) - focused on the absence of clear indicia of knowledge and assent in finding there was no contract.

Earlier (~1996-2000) jurisprudence (case law) may have been hesitant to bind website visitors to a website's TCU without an affirmation of assent, but 9 or 10 years ago the WWW was a relatively unfamiliar place for many people.

256,000,000 [google.com] instances or public exposures to TOS suggest the possibility of a growing public awareness - and therefore basis for finding express or implied assent - to their conditions.

Reasonable minds may differ, but I'm willing to venture that the trend will favor enforceability without "click through" corroboration.

Otherwise, to paraphrase Carl Sagan, those 256,000,000 instances of browse-wrap TOS would seem to be an awful lot of wasted space.

Luddite




msg:925360
 11:03 am on Sep 7, 2005 (gmt 0)

from WW's link:

To be effective, however, the notice must be sufficiently conspicuous so as to be seen by users before they use the website and must fairly warn users that their unambiguous conduct will result in acceptance of the terms of use. Courts have warned that notices that are cryptic, included with other links at the bottom of a website page, or not prominently displayed, may not be sufficient.

One case, one opinion, but interesting.

The MLS website in question now requires a clickthrough license to view its content. - I had wondered why it was so "lawyered-up", before - The "agree to license" step certainly gets in the way of casual use.

Webwork




msg:925361
 2:35 pm on Sep 7, 2005 (gmt 0)

One case, one opinion, but interesting.

Truth is I've searched for authoritative opinions and there is a dearth of precedent. The initial cases dealt mostly with software, boxed or downloaded, and the judicial opinions - few though they were - were not uniform, not that I would expect uniformity.

It's an interesting area of the law, one that is certain to expand, consistent with the common practice of employing a TOS/TCU. In part I'm arguing that it's reasonable for courts to view the widespread use of TOS/TCU as a factual basis for finding at least a basis for a rational inference that someone who "enters" a website knew - or reasonably should have known - that their "use" of the website was not unconditional.

I can see early (1995-2002) cases being more cautious. I can see early cases relying on other bodies of law for guidance, such as the UCC or "Uniform Commercial Code". However, the WWW's unique properties will likely argue for a unique approach, new law and perhaps a new UCC for all things web-based.

BigDave isn't wrong any more than I'm right. He swings a big stick in that he is firm in his views and does a nice job of reasoning and articulating his opinions. Often, the best result - which I think BD and I would agree is to have people aware and thinking about the issues, not simply thinking they have the answer, or even that there is an answer - arises from a balanced presentation or the reasoned expression of an opposing point of view.

Webwork




msg:925362
 2:39 pm on Sep 7, 2005 (gmt 0)

A thought.

This thread is taking 2 tracks, one about copyright & the DMCA, and the other about added protections that might arise from a well crafted and executed TCU/TOS.

Perhaps in the interest of maximizing it's utility the discussion relating to non-DMCA matters ought to be broken off?

Leosghost




msg:925363
 4:01 pm on Sep 7, 2005 (gmt 0)

This post describes what you should do if you discover that your website’s content has been copied or reproduced without your permission.

Please note that my phantom cousin there used the words copied and reproduced ..whilst ...Bigdave ..in your haste to "explain" to us all have actually taken us off on ones right to "read" the "publically available material" ..

One's right to "read" such was never called into question ...

There is such a thing as missing the point and trying to be too eager to argue your favourite line to realise that it's not actually relevant to the subject ( see above quote ) in question ..which personally I always take to be the first post in a thread.

proton




msg:925364
 5:39 pm on Sep 7, 2005 (gmt 0)

Copyright infringement or "fair use"? Only your judge knows for sure.

Fair Use FAQ's [eff.org]

Dynamoo




msg:925365
 8:10 pm on Sep 7, 2005 (gmt 0)

Very good. Though many of the steps only apply if the infringement takes place in the United States.

One key point with the DMCA however is that both the originator and copier of the material can be *outside* of the US if the web host or search engine in based *inside* the US.

So, I can file a DMCA complaint with a US host or search engine even if I am based in the UK (where the DMCA does not apply) against a copier based in (say) Singapore (where the DMCA also does not apply) and the host or search engine is legally obliged to act upon it.

klauslovgreen




msg:925366
 5:15 am on Sep 8, 2005 (gmt 0)

What about a situation where one can see from log files that content is being ripped in large portions but not re-published (yet) - literally 500,000 hits on our server trying to rip a company database to use e-mail addresses for spam). In order to access this particular content a user have to log in and hence must accept our terms where we specifically state that harvesting is not permitted and furthermore the software used to rip content violated our robots.txt as well.

Can I file a DMCA based on this - report it to some authorities?

sublime1




msg:925367
 1:03 pm on Sep 9, 2005 (gmt 0)

digitalhost (and all) -

This is a great post, and important for all sites; ours have been scraped, mangled, reproduced wholly or in part and all other sorts of pretty unambiguously bad things.

Our site provides lots of original content, and a set of links to other sites, sometimes with an editorial synopsis, more frequently with a brief quote or snippet from the content and always with attribution. We try to be a single resource for customers looking for our kind of widget, unifying and organizing content. And yes, we do this for money in a competitive arena.

We had an interesting case in which one of the sites we often link as an authority, usually with a brief human synopsis of the content told us we could no longer link to them. Out of courtesy we immediately removed the links, but we think the main motivation was simply that our site was getting some of the traffic their site used to. Yet the same site is more than happy to have its content on Google :-)

I guess my point is that protecting content cuts both ways. There are fair uses of other content, and it has been a tenet of good journalism.

COlarry




msg:925368
 3:30 am on Sep 12, 2005 (gmt 0)

As a lawyer who no longer formally practices law AND who has had several FLAGRANT thefts of unique online content, a couple of suggestions:

1. Know who you are dealing with; some very large companies have employees who steal or plagiarize. And some community forums end with stolen materials. A diplomatic quick notice and inquiry to these hosts and their management will often result in quite immediate self-remedy; hostile first volleys are counterproductive here.

At the same time, off-shore hosted obvious anonymous type sites who are hosted by servers on spam lists -- are unlikely to be moved by anything. Getting them off the SERPS may be the best you can hope for.

2. Early intervention is important. I use a copy watchguard service (sticky me for its name, unless the mods inform me okay to include here as a generic example) that for a few pennies a month combs the web and returns examples of folks with my content. I have incredible learned of folks literally putting up a site with a picture of my office -- on their home page -- from this service.

3. The SERPS offices are responsive and give you a link as well!

4. Do formally register your original site content with the Copyright Office for the reasons noted in other posts.

This 31 message thread spans 2 pages: 31 ( [1] 2 > >
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