Cease and Desist

Cease and Desist worked, but now...

[shoreline]

I just redesigned an old site of mine, which has been around for many years, and when I was finished, I decided to check if anyone had copied my content.

Sure enough, A large company has copied my content, along with my java code, and even the url of the pages, word for word. All of it written by myself - and the code is complex.

When searching for terms on search engines, The large company appears as the top result while I appear below them.

Further research shows this has been going on for 5 years, and yes, my bad for not noticing it until now!

There is no question as to ownership, the site has been featured in popular books, the site and code existed long before the infringing site was put into action, and it would be impossible to have done this by accident. It was blatant.

So, I fired off a cease and desist letter to the registrant, board members and top staff containing details and examples about the infringement (ISBN numbers, screen shots, etc) and demanded they remove the pages in question explaining that I've lost traffic and revenue.

They immediately responded and have taken the infringing material down.

In a short email, they explained that it's unlikely they copied the content directly from my site and likely copied it from another site that had copied my content. They also offered to place a link back to my site.

Yup, I read that as "We didn't steal from you, we stole it from someone else who stole it from you."

My site makes money from ads, so right now, I'm not sure how much I've lost from the infringement, perhaps take the traffic they received over the years and go from that?

I'm happy they have removed the content but it irks me they blatantly duplicated my content!

My question is, should I be happy with the results and move on, or should I take legal action?

[BeeDeeDubbleU]

In a short email, they explained that it's unlikely they copied the content directly from my site and likely copied it from another site that had copied my content.

Oh well! That's OK then.

[Marshall]

Been down this road.

If you do not have an actual registered copyright on the content and pursue legal action, all you are entitled to is actual loss and "reasonable" attorney fees. You are not, however, entitled to additional compensation such as a portion of any revenue they may have earned as a result of the infringement or punitive damages. Copyright Law of the United States of America [copyright.gov]

Marshall

[shoreline]

I was under the impression that violation of the DMCA and copyright law can subject violators to equitable and monetary damages, attorney fees, and for willful infringement, a court could award up to $150,000 per violation.

I read the "willful infringement" part and figured it applied?

[Marshall]

I read the "willful infringement" part and figured it applied?

Again, only with a registered copyright, as per my attorney.

Marshall

[thirteen]

In a short email, they explained that it's unlikely they copied the content directly from my site and likely copied it from another site that had copied my content. They also offered to place a link back to my site.

It could be unintentional. The other website owner could have given them permission to use the content.

It's hard to know who is the copyright owner or if it is copyrighted.

The site complied with DMCA takedown notice. They are protected by the "Safe Harbor" provision.

You will be wasting your time and money trying to pursue this.

[jecasc]

Probably hard to calculate any damages or how much they earned from the website.

Where I live the damages are calculated by what is called "license analogy". The law states that in cases like this you are entitled to the amount it would have cost the company to get a license for similar content, duplicated by the factor two. Same goes for use of images without a license agreement. The theoretical license fee depends on the quality of the content or image and how long it has been used and is calculated by the market price. For five years of use this would be quite an amount. If you calculate only 10 EUR for a page/month, multiplied by two - this would be 1200 EUR/page.

However it depends on where you live and where the infringer lives.

I'd consult with a lawyer to check what you would be entitled to and ask about risks and the costs for legal action.

You can't make an informed decision if you do not know what you would get, what it could cost and how risky it would be.

Here is some basic information about compensation in cases of copyright infringment in different jurisdictions:
[thefreelibrary.com...]

It could be unintentional. The other website owner could have given them permission to use the content.
It's hard to know who is the copyright owner or if it is copyrighted.The site complied with DMCA takedown notice. They are protected by the "Safe Harbor" provision. You will be wasting your time and money trying to pursue this.

In cases of copyright infringment a permission from someone who is not authorized to give permission is worth: Zero. And they are not protected by anything. You are only protected to a certain extent if a third party posts content on your website. For example if you run a blog and somone posts a newspaper article in the comments section you are not liable if you take down the content immediatly after being notified. But not if you post the content yourself.

[thirteen]

In cases of copyright infringment a permission from someone who is not authorized to give permission is worth: Zero

Won't this help in tossing out "willful infringement"?

For example if you run a blog and somone posts a newspaper article in the comments section you are not liable if you take down the content immediatly after being notified. But not if you post the content yourself.

Are website owners who outsource content writing to third party professional writers not protect by the Safe Harbor provision if they comply with DMCA Takedown notice?

[jecasc]

Are website owners who outsource content writing to third party professional writers not protect by the Safe Harbor provision if they comply with DMCA Takedown notice?

Safe harbor protects service providers from liability for the activities of its users or customers. If you run a forum and a user posts infringing content you are protected.

A writer you hire is not a user or customer of a service you provide. If you post content on your own website yourself or hire others to post content on your own website you are liable for what you publish.

That would be a little to easy if companies could simply copy content and then blame it on Mr John Doe the mystery writer they hired a few years back and who unfortunately has dissapeared.

You can get some more info on Safe Harbor here:
[chillingeffects.org...]

[shoreline]

Based on everything here, and since Marshall has already been down this road, I'll take the offer to link to my site and move on.

Thanks for the input!

[Marshall]

This is not legal advice, just personal advice.

If your work is important enough to you, it is well worth the registration fee for a copyright ($30 online, $50 the old fashion way. See Registering a Work [copyright.gov]), especially since it is so much easier to steal work these days. There are very few lawyers I know of (and I know plenty) who will take a copyright case without it.

Marshall

[shoreline]

Got it, and thanks for the link Marshall!