Forum Moderators: not2easy
Recently I have learned that another site has scraped my site and has republished many of these images (size has been decreased about 30-40%) with the title and/or a few keywords in the url and header etc. In addition, they have used these keywords to create links from a different blog with separate permalinks pointing to these pages. This has had the result of knocking me down in the SERPS even though the orginal image/content exist on my site. They do have a link on each page pointing back to the artist's profile page on my site.
A couple of questions:
1. Do they have a right to post images on their site from mine, if they attribute the artist and/or shrink the size a little, although it's still big enough to discern the content easily, ie not a thumbnail.
2. Is reusing the title of the artwork with some keywords thrown in from the content legal?
3. If I were to file a DMCA complaint, it mentions that the specific url should be posted in the complaint. However, in this case, there are thousands upon thousands of pages which they created from my site. Do I need to document each page violation? I'm not sure how that would be possible there are so many.
4. If there is no violation going on, what steps can I do to make it back on the SERPs? Do I need to start creating my own blog-type sites in order to generate links to my own communty's content?
Any insight on what to do? Thanks.
2. it is most likely legal to use the titles. Even if the title is trademarked, as long as they are not claiming that trademark as their own. Combining it with the pictures that they are using without permission might raise trademark issues (but only if they are trademarked)
3. If you read the DMCA, you are able to use a representitive sample. Your IP lawyer should be able to help you with this. But are you sure you want to fraudulently claim copyright on those images?
4. You are running a community site, ask your community to help by linking to their own pics and those that they like. You should also make sure that your internal navigation is in order.
Any insight on what to do?
I would suggest that you bring this up to the copyright holders and give them samples of how to send a DMCA complaint.
Imagine what the ISP would do if they started getting a dozen complaints a week, from different people, about a single site.
Oh yeah, check with a lawyer.
If you need a U.S. attorney, you might contaact Jerry at www.labizlaw.com
-Corey
1. No, they do not have the right, but since you are not the rights holder for those images, it is not your place to file a complaint.
My terms of service state that I am authorized to act on behalf of artists in case of infringement by other sites. So I believe it is my right to file a complaint. Is that correct?
2. it is most likely legal to use the titles. Even if the title is trademarked, as long as they are not claiming that trademark as their own. Combining it with the pictures that they are using without permission might raise trademark issues (but only if they are trademarked)
I can understand this if it's a copied title every now and then, but in this instance they have mass copied a large portion of my database inserting the title in title headers, urls etc. How can such mass-copying be legal? I'm dissapointed if indeed this is legal.
3. If you read the DMCA, you are able to use a representitive sample. Your IP lawyer should be able to help you with this. But are you sure you want to fraudulently claim copyright on those images?
OK, that's good to know. I don't have a lawyer as this is just a hobby site. So I would be writing and sending it on my own. My goal is to have the images/pages with title text removed from their site. In order to achieve this goal it would seem filing a DMCA complaint is the way to go.
4. You are running a community site, ask your community to help by linking to their own pics and those that they like.
They generally don't have sites in which to put links in the first place. Or they are no longer active and wouldn't be aware in the first place.
You should also make sure that your internal navigation is in order.
All navigation links are working. But there is not an external doamin linking to the individual image pages. Since they do have a shadow domain linking in this way, they end up being higher in the SERPs.
I would suggest that you bring this up to the copyright holders and give them samples of how to send a DMCA complaint.
This is not realistic because only a small number of people would do this.
Imagine what the ISP would do if they started getting a dozen complaints a week, from different people, about a single site.
The isp is located outside the US, in Europe and I believe they did receive complaints in the past but nothing happened.
Oh yeah, check with a lawyer.
I was afraid of this. Thanks for the feedback.
My terms of service state that I am authorized to act on behalf of artists in case of infringement by other sites. So I believe it is my right to file a complaint. Is that correct?
I suspect you are setting yourself up for some major hurt if they decide to fight back and you are relying on your TOS.
You "know", I "know", and just about everyone "knows" that they do not have permission from each of the rights holders to use their images.
Unless you have somehow gained *exclusive* rights (in writing and signed) to the work, you are most likely not in a very good legal position. You can put whatever you want in a TOS, that does not mean that the courts are going to honor it. And copyrights are a lot like real estate, the courts and the law require most things in writing.
So, my non-lawyer answer is that I believe that you are incorrect, and that you are opening yourself up for some mighty pricey counterclaims.
Some sections of the code that you might be interested in reading.
17 USC 501
(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it
notice who has the right to file the claim?
As for the DMCA 512(c)(3)(A)(vi) states
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
notice that "penalty of perjury" part? do you really want to be playing do it yourself lawyer for this?
I also suspect that there would be issues around whether you could send one notice that covers several different rights holders.
I don't have a lawyer as this is just a hobby site. So I would be writing and sending it on my own. My goal is to have the images/pages with title text removed from their site. In order to achieve this goal it would seem filing a DMCA complaint is the way to go.
If you want to follow this route, given that you are not the copyright holder, I highly recommend that you contact an attorney.
What you are suggesting seems an awful lot like fraud to me.
The isp is located outside the US, in Europe and I believe they did receive complaints in the past but nothing happened.
Uh, you do realize that the DMCA is a US law? You have to follow the laws of the country where the ISP is located.
But while they are not required to pay any attention to a DMCA takedown, if you are in the USA, then you could be liable under US laws for your actions while going after them.
You might have some luck sending takedown notices to the search engines, but they are not fond of takedown notices, and they do have the lawyer power to cause you problems with your lack of a right to send them if they wish.
No, they do not have the right, but since you are not the rights holder for those images, it is not your place to file a complaint.
Actually, he doesn't have to be the rights holder of the images if people are posting on his site - but he has the right to his unique compilation / collection. The fact that someone else is scraping the entire collection and linking it back to his web site is a huge infringement and they are self-incriminating.
Compilations are protected - write to the abuser and if he refuses, blast a DMCA to his host.
You could also test for his blog as a referer and drop a 404 for anyone coming from his site.
Unless you have somehow gained *exclusive* rights (in writing and signed) to the work, you are most likely not in a very good legal position.
I'm not arguing that I in any way have *exclusive* rights. I'm not even arguing that I have non-exlusive rights to the works. The terms only state that I am *authorized to act on behalf* of the copyright holder in cases of infringement. If an artist wants to volunterily post the work to any other site, or indeed even the scraper site, that's fine.
You can put whatever you want in a TOS, that does not mean that the courts are going to honor it.
Yes, I agree.
17 USC 501
(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of itnotice who has the right to file the claim?
As for the DMCA 512(c)(3)(A)(vi) states
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.notice that "penalty of perjury" part? do you really want to be playing do it yourself lawyer for this?
Yes, that is true, but the terms do state *authorized to act*.
And this is what one of the largest community sites states in their policy:
You agree not to reproduce or distribute, or cause to be reproduced or distributed, any material that you retrieved from the Site, without the express prior permission of both example.net and, in the case of copyrighted materials, the copyright owner, except for such reproduction as occurs in the normal course of reading or viewing the materials using a Web browser. Requests for permission to reproduce or distribute materials retrieved from the the Site should be sent both to example.net and the original author of those materials.
It does not state *either* the site *or* the copyright holder, it states *both* and *and*. This indicates to me that a DMCA complaint would be justified in this instance. Maybe that would mean talking to a lawyer to write up a more legal policy however.
What you are suggesting seems an awful lot like fraud to me.
Are there any other opinions about this? I agree I should talk to a lawyer, but then again, maybe I could take the other route and start creating fake blogs to auto-generate keyword-rich links pointing back to each image page.
You might have some luck sending takedown notices to the search engines, but they are not fond of takedown notices, and they do have the lawyer power to cause you problems with your lack of a right to send them if they wish.
I don't see how there is a lack of right to send them if I am autorized by the copyright holder to act on their behalf in case of infringement. The copyright holders would certainly be pleased as this would save them time and effort. And I don't see how counter-suing would accomplish anything given that the images in question do not belong to the infringer, and do not fall under fair use. That being said, the best thing is probably to have a consultation with an IP lawyer. Thanks.
The fact that someone else is scraping the entire collection and linking it back to his web site is a huge infringement and they are self-incriminating.
The thing is, they are displaying certain subsections within the entre colection. Indeed, they are skimming the cream of the crop within these sub-sections. However, given that there are hundreds of thousands of images in the collection, this amounts to thousands upon thousands of images. I'm not sure whether that still is some kind of collection infringement, but it would be good if that argument could be used. Thanks.
Actually, he doesn't have to be the rights holder of the images if people are posting on his site - but he has the right to his unique compilation / collection. The fact that someone else is scraping the entire collection and linking it back to his web site is a huge infringement and they are self-incriminating.
Uh, did you read his first post?
Here is the important part
I run a community site where people posts images with their own written content.
That is what is being copied. There is no mention of copying the pages, the layout or the ordering.
Compilation copyrights only cover those aspects that are not covered by the rights of the individual works.
write to the abuser and if he refuses, blast a DMCA to his host.
And how does the DMCA apply to ISPs that are not located in the USA?
I'm not arguing that I in any way have *exclusive* rights. I'm not even arguing that I have non-exlusive rights to the works. The terms only state that I am *authorized to act on behalf* of the copyright holder in cases of infringement. If an artist wants to volunterily post the work to any other site, or indeed even the scraper site, that's fine.
I know that you are not arguing that you have exclusive rights. But the fact that you do not have those rights means that you would not be acting within the scope of copyright law to issue a copyright complaint without consulting with the rights holder.
You can put whatever you want in a TOS, that does not mean that the courts are going to honor it.Yes, I agree.
And if they do not honor your right to prosecute the claim, then you open yourself up by prosecuting a claim that you have no right to make.
Are you ready for that? Your house, your car, your savings are on the line.
Yes, that is true, but the terms do state *authorized to act*.
And I can tell that you have not read the rest of section 512. Are you willing to swear that you meet all those qualifications at the risk of significant financial loss? If you are willing to swear to that, given what you have said so far, you would be lying.
It does not state *either* the site *or* the copyright holder, it states *both* and *and*. This indicates to me that a DMCA complaint would be justified in this instance. Maybe that would mean talking to a lawyer to write up a more legal policy however.
Like I said, you can say whatever you want in your TOS. It is the law that allows you to initiate legal action.
Personally, I did not see where they claimed "authorized to act in the user's behalf" on infringement claims. They are talking about permissions, which is a different kettle of fish.
Not to mention that little part that you ignored about the fact that the DMCA is useless against an ISP in another country.
I don't see how there is a lack of right to send them if I am autorized by the copyright holder to act on their behalf in case of infringement.
Let me make this clear to you. You are not authorized to act in their behalf if they do not specifically request that you act in their behalf in this specific case.
Did you get that?
And I don't see how counter-suing would accomplish anything given that the images in question do not belong to the infringer, and do not fall under fair use.
They would not countersue on IP claims. They have no need to.
but if you fraudulently initiate legal action, they have a whole pile of laws that they can fling back at you.
The truth is that the whole "outside the USA" part makes it all a lot more complex than you could possibly imagine. My guess is that they will just ignore you, and do so quite successfully.
The isp is located outside the US, in Europe
No brainer -
I'd write them a nice little letter explaining that they could either take down the images or explain your next step will be to file a DMCA to the SEs. If they refuse fire off a DMCA to Google, Yahoo, MSN, etc. and get a few image owners to do likewise.
You may not shut them down, but you can shut off their traffic which is just as bad.
As far as I know those regulations are very similar to the DMCA regarding e.g. actions against and by ISP's hosting copyright infringing material. If it is not an EU country the case is different.
Even if the ISP is in Europe it could be useful to check if the server might be located in the USA...
