It seems that two or three times a week I am sending a DMCA take down notice to a website hosting company to complain about the blatant and willful copyright infringement certain customers of theirs are engaging in. They will literally cut and paste entire articles without as much as changing a single word. Copyright infringement is rampant on the Internet and if you are creating original content you must do something to inform yourself about what others are doing and take appropriate and immediate steps to get copyright infringers to stop.
By now you would expect that virtually everyone knows that you cannot cut and paste the work of others onto your website without their permission, but I am not sure that is the case. Whenever I talk to people about copyright law and the copyright infringement we deal with they ask “so they just copied your work without any link back to you?” In some cases I can answer that question “yes,” but in other cases the answer is “no.” It is amazing to me that people can actually think they can copy the work of others if only they provide a citations or link back.
Copyright infringement has nothing to do with citation or linking back. A copyright owners rights have been infringed if another reproduces the work without their permission with or without citation. In the minds of some copyright infringement is synonymous with plagiarism. Plagiarism, however, is the passing off of the work of another as your own without citation. Legally, however, copyright infringement is merely copying, with or without appreciation of the wrong. So those who cite and link back are not absolved from copyright infringement. They are misappropriating an original work and free-riding. There is nothing creative, laudatory or commendable about free-riding.
Luckily in the United States we have the Digital Millennium Copyright Act to assist us. This Act provides immunity from liability for Internet Service Providers as long as they act swiftly to investigate and ultimately remove or disable infringing material once they are notified. So the website hosting provider leases space on their servers to an individual or business and the lessee posts the infringing material. If you notify the web host they, in my experience, always take down or disable the infringement because if they don’t then they will be on the hook. With attorneys fees and statutory damages that can rise to $150,000 (see 17 U.S.C. § 504(c))it isn’t hard to see why the DMCA is so effective a tool for copyright owners.
Given that we are having increasing difficulties with copyright infringers I’m sure there are many others out there having similar experiences. With that in mind I thought it might be useful to take a look at the DMCA provisions and what is required in order to create an effective DMCA take down notice.
The Digital Millennium Copyright Act
The United States Congress enacted The Digital Millennium Copyright Act, more commonly referred to as the DMCA, which was signed into law on October 28, 1998. The DMCA had as its primary purpose the goal of updating United States copyright laws with an eye toward making them more relevant and flexible given the ever changing digital information climate.
17 U.S.C. § 512(c) limits the liability of service providers for infringing material on websites hosted on their systems. Service Providers are eligible for the limitation on liability when they do not have actual knowledge of ongoing copyright infringement, are not aware of facts or circumstances surrounding ongoing copyright infringement, or upon gaining such knowledge the Service Provider responds expeditiously to take the material down or block access to it.
§ 512(c) establishes the procedures for proper notification to a Service Provider should you feel that your copyrighted material has been misappropriated and there is ongoing copyright infringement by someone using our services. Under these so-called notice and takedown procedures a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to our designated agent. Failure to comply with the statutory requirements means that the notification is defective. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability.
How to Send a DMCA Take Down Notice
To be effective as a DMCA take down notification your notification of claimed copyright infringement must be a written communication to the service provider’s designated agent and must include the following:
1. Identification of the copyrighted work(s) claimed to have been infringed.
2. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled. You must provide information reasonably sufficient to permit the service provider to locate the material, such as the URL where the infringing material can be located.
3. Information reasonably sufficient to permit the service provider to contact you, the complaining party. At a minimum you should provide your address, telephone number and an electronic mail address that can be used to contact you.
4. You must include one of the following statements somewhere in your letter:
a. “Under penalty of perjury, I swear that I am the owner of the copyrighted material described in this letter and that the identified copyrighted material is allegedly being infringed and that I have the right to act on my own behalf to seek redress for this alleged infringement. I have a good faith belief that use of my copyrighted material in the manner complained of is not authorized by myself, any agent of mine or by the copyright laws. I further swear under penalty of perjury that the information contained in this letter is true and accurate.” OR
b. “Under penalty of perjury, I swear that I am authorized to act on behalf of the owner of the copyrighted material described in this letter and that the identified copyrighted material that is allegedly being infringed. I have a good faith belief that use of the copyrighted material in the manner complained of is not authorized by the copyright owner, any agent of the copyright owner, or the copyright laws. I further swear under penalty of perjury that the information contained in this letter is true and accurate.”
5. You must sign the letter either with a physical, wet signature (i.e., using a pen) or you must use an electronic signature.
6. Send the notification to the service provider. You can find the service provider in most cases by doing a Whois Search. Type in the domain name and then look for “name server.” For example, if you type in “LEGALTEAMUSA.COM” to the Whois Search you will find that the “name server” is EXTNS1.NUVOX.NET. That means LEGALTEAMUSA.COM is hosted on NUVOX.NET servers. So you would go to NUVOX.NET and find the contact addresses, fax or e-mail address and send your notification.
If you follow these procedures I’m as confident as I can be about anything that you will find your copyrights vindicated.
Join the Discussion
13 comments so far.
Paul CarlsonAugust 23, 2013 05:07 pm
We have copy write infringement for a large part of our website http://www.theezygolf.com by a web site in China: http://www.tjskl.org.cn/suppliers/cz154f181/
Are you aware of any recourse?
BrendaJuly 28, 2013 03:26 pm
I’m sorry, but the information in item #6 is incorrect. Just because a particular server is providing DNS services for a given domain does not mean the web site is hosted on that server or even hosted by that service provider. There are many sites that use DNS services provided by their domain registrar or other third party service provider, but host their sites elsewhere or on their own internal servers.
Steve MFebruary 8, 2011 05:03 pm
But how can a rejection of an application be/meet the prerequisite?
Doesn’t the rejection mean the “work” didn’t/doesn’t qualify for (a) copyright?
Blind DogmaFebruary 8, 2011 02:53 pm
Solid addition CA
Copyright AttorneyFebruary 8, 2011 03:51 am
If you believe that your copyright has been infringed and you anticipate a legal dispute, if you have not yet done so, it is advisable that a registration be made as soon as possible in order to secure the opportunity for valuable remedies and litigation advantages available for timely registration under the Copyright Act. If a work is registered prior to infringement or within three months of publication, statutory damages will be available as an option for monetary relief, and the recovery for attorney’s fees may be available. In addition, a registration made before or within five years of publication of the work provides a presumption of the validity of the copyright and the facts stated within the registration certificate. A certificate of registration (or a rejection of an application for copyright) is a prerequisite for U.S. authors seeking to initiate a suit for copyright infringement in federal district court. See Circular 1 Copyright Basics, and sections 410, 411, and 412 of the copyright law.
The Mad HatterFebruary 7, 2011 10:08 pm
Actually the simplest way is what Gene mentioned – using Google alerts. I have a variety of alerts running which keep me updated on things I’m interested in. Of course Google Alerts only work if they keep your name.
Trackbacks are useful as Gene noted.
What you are suggesting however isn’t something that would be easy to automate. And the problem is dying, since Google changed their algorithms recently. The first change was to downgrade link farms, which hopefully will cut down on the amount of link spam. The second it to downgrade secondary postings. This will kill the market for copying content. Have to admit that while I haven’t been all too worried about content copying, I do regular Google and Bing searches, and they all lead back to me before they lead to anyone else.
Wayne aka The Mad Hatter
Steve MFebruary 7, 2011 04:58 pm
A nifty way to find infringers is to cut and paste a “content chunk” (5-20+ words normally does the trick) from within the body of your articles/original content in the search engines with quotation marks at the beginning and end of said chunk (checking headlines isn’t the best way to check, since many “folks” change them).
Depending on how often the SE spiders crawl yours and any rip-off site(s); and of course exactly when they posted your content to their site; you should be able to find the infringements within a week or two of when they posted it.
Haven’t tried setting up google alerts using this much content, but would imagine that could work as well.
Gene QuinnFebruary 7, 2011 02:20 pm
I have some Google alerts set up that keep me informed of what is going on in the intellectual property news world, and from time to time alerts me to the fact that someone has taken one of our articles.
One of the best ways I am alerted to this sort of thing is through the eyes of readers and friends who stumble across things and then let me know that they saw an identical copy. So I am extremely thankful for that.
Another way is to make sure that you have the comments on your blog set to notify you of trackbacks. I think a lot of folks think they can take whatever they want as long as they provide a link back. So whenever I see a trackback I always check it out because in many instances it is thanks to a cut and paste copyright infringement. They also help even when there is no citation link because frequently (if not always) I refer back to something else I have written on a topic with a link in the article. So if they copy the links too then there will be a trackback. This along with readers is probably the way I find most infringements.
John SpevacekFebruary 7, 2011 02:12 pm
Any suggestions for detecting the infringement in the first place? I’m assuming Gene, that given the size of your readership that this is a problem that you face personally and this is not all regarding clients.
WolfgangFebruary 7, 2011 02:00 pm
You’d be surprised. Even lawyers think they can copy and past articles.
TINLA IANYLFebruary 7, 2011 10:53 am
I think it is largely true that ISPS will take down content even if the alleged infringer responds in the manner set forth in the DMCA that renders the service provider exempt from liability even if they do not take it down or block it.
However, I have run into some cases where the infringers were very savvy about the DMCA requirements, were willing to commit perjury in order to keep the content up, and had found one or more ISPs willing to leave the content up after they provided the perjurous response in compliance with the DMCA. And why would an infringer residing outside the US fear consequences?
So be advised that it can happen, and then you just have to file suit and get an injunction to have it taken down.
The Mad HatterFebruary 7, 2011 08:24 am
is why I recommend that no one host their content in the United States. I know of too many cases, where the DMCA has been used to take down content that the issuers of the DMCA didn’t agree with, or that they thought they owned, but didn’t, or that they wanted down now, and couldn’t wait for the uncertainties of a court case.
Incorrect. The actual stated purpose was to bring U.S. Copyright laws in line with the WIPO Copyright Treaties of 1995. Anyone who has actually read the WIPO copyright treaties will not recognize their offspring. In fact while the U.S. claims WIPO compliance, they have not yet attained it.
I follow copyright issues very closely now, however I wasn’t when Congress was debating the DMCA. Why they decided on a notice and takedown instead of the more logical notice and notice is the subject of intense discussion even now. A lot of us believe that Hollywood Joe Biden was involved. If he was, tar and feathering are the words most often heard, since the DMCA puts the United States at a competitive disadvantage.
And if you’ve followed ACTA it’s an attempt to export the non-WIPO parts of the DMCA. Luckily it appears that ACTA is likely to die.
Wayne aka The Mad Hatter
blueFebruary 7, 2011 01:05 am
good post. thanks!