Internet Copyright Theft: Content Creators Must Stay Vigilant

The digital age is upon us and there is no turning back. People all over the world are becoming increasingly connected via the global telecommunications network that we call the Internet. Perhaps the best, and certainly the most cited, definition of the Internet can be found in the now famous district court decision in American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830-31 (E.D. Pa. 1996), which defines the Internet as follows: “The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks.”

This network of networks connects people from far away places as if they are in the next room. The Internet has revolutionized communications and the way we live, making virtual friends online that we are likely to never even meet; namely, those from far away locations that we share similar interests with and connect with via LinkedIn, befriend on Facebook or those we play fantasy sports in the same ESPN league. But for all the good and enjoyable that comes from the Internet there are ever present downsides. Loss of privacy, being constantly tethered to a machine or device and, of course, the crimes that become so much easier to perpetrate.

As Internet usage grows, new legal questions associated with the technology continue to surface, as do certain bitter and painful business realities. The sad but simple truth is that digital technologies make the infringement of intellectual property rights, particularly copyrights, easier than ever before. For support of this statement one need look no farther than the myriad of examples of copyright piracy that are plaguing the Internet. The music industry has faced significant problems that were thrust upon it years ago by Napster and other music sharing web sites, requiring lengthy and sometimes needless battles. In the end the music industry has adapted as we all knew it should, to embrace the technology and provide consumers what they wanted. Thus we have the tremendous growth and popularity of everything “i” Apple, from iPods to iTunes.

Likewise, piracy of computer software has risen to an alarming level, and continues to affect even those large companies that are best equipped to mount a campaign against these counterfeiters. The stories about software piracy are only increasing in number, and the damage suffered by the industry is staggering. Due to the relatively insignificant criminal penalties associated with intellectual property crimes, such as criminal copyright infringement and counterfeiting, drug cartels and other organized crime organizations around the world continue to see intellectual property theft as an extremely high profit margin business with relatively low downside. See Counterfeiting, A Growing Worldwide Problem.

Increasingly we are learning that the laws we have relied upon to protect intellectual property, in some cases for generations, cannot adequately address Internet piracy. For example, when David LaMacchia posted computer software on the Internet back in the mid 1990s, and allowed others to download that software and thereby engage in piracy, he was charged with committing crime. The fact that LaMacchia was charged with a crime may seem unsurprising by the standards of today, because today what he did is a crime. At the time LaMacchia posted the software, however, his actions were not criminal, which was the reluctant conclusion of the United States District Court for the District of Massachusetts.

Changes were made in the copyright laws of the United States in order to ensure that what David LaMacchia did would be criminal in the future. Nevertheless, those changes to the copyright laws did not put an end to piracy on the Internet, nor could they have been realistically expected to do so. Corporations, entrepreneurs, artists and creators have lobbied the United States Congress for changes in the law to help them protect their copyrighted works, but they have also increasingly relied upon technological measures to protect their copyrighted works. While there is no legal requirement that a copyright holder take steps to secure or sequester material in order to avail themselves of the protection offered by U.S. copyright laws, there is no prohibition against copyright owners seeking to use technological means to preserve their rights. Prudence dictates content creators continually monitor to see if there is ongoing infringement, take steps to make such infringement more difficult and do whatever can be done to address infringement when (not if) it is discovered.

The United States Congress responded to the requests of copyright owners in the past, and ostensibly the mandates of treaty requirements as well, by offering legal protections to those wishing to protect their copyright works through the use of technology aimed at preventing unauthorized copying. Congress ultimately enacted The Digital Millennium Copyright Act, more commonly referred to as the DMCA, which was signed into law by President Clinton 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.

As well intentioned as the DMCA and those who enacted it, copyright infringement continues to grow. It is true that the DMCA does contain provisions that allow copyright owners to have their original content removed from a particular website, but the reality is that once something is put up on the Internet it takes on a life of its own.

The so-called DMCA take down provisions are aimed at giving those who host infringing material on their websites the incentive to remove that infringing content. This is accomplished by granting those who provide hosting services safe harbor immunity from copyright infringement, which they enjoy so long as they do not know about the existence of infringing material on their servers. To continue to enjoy the immunity from copyright infringement litigation a host must take steps to remove infringing content with all due haste upon being notified by the copyright owner. Copyright owners must follow a prescribed statutory recipe when they contact the host, and the host will notify the party who controls the website that posted the infringing content. In my experience that will result in either the infringer removing the content or the webhost turning off access to the website, or both. There is a mechanism for those who are wrongly targeted to provide a counter-notification. I understand that there are abusive copyright claims, but my experience shows me that the far greater problem is the willful and wanton cutting and pasting of original content without permission. Content creators must be vigilant, must know the power of the DMCA and how to use it. See How to Stop Online Copyright Infringement, Combating Copyright Infringement: DMCA Take Down Notices and Sample DMCA Take Down Letter.

Unfortunately, the DMCA will not work in every situation. This is a U.S. law so if the host is within the geographical boundaries of the United States it works extremely well. In fact, I have never had a U.S. service provider fail to take action, although some are more immediate than others. In about 98% of the cases I can get infringing material off a website with a DMCA notice in less than 48 hours, in over half of the cases within 24 hours. But what about those situations where the host is outside the United States?

Again, in my experience as a content creator who frequently has stuff stolen, copyright infringement associated with original articles, which is truly rampant, is done because the person or entity taking the article is posting it to their own blog. They almost invariably derive revenue from their blog, which is just one copyright infringing post after another, by having Google Adsense installed. That is to say they steal original works they like and post it to their site to attract those who might find the article interesting. This is all done in hopes that when readers arrive they will click on the ads served up by Google, which in turn will result in the owner of the website receiving a portion of the revenues collected by Google.

Thankfully, Google is not in the business of making money indirectly through infringement of copyrighted works. If you find your content stolen by a website that delivers Google Ads you can file a complaint with Google and they will investigate. Google cannot remove the article from the copyright infringers website, but they can and do suspend the Google Adsense program associated with those who engage in copyright infringement, which takes away the incentive for those who rely on Google Ads for revenue to steal your copyrighted original content. I have had success notifying Google in the past even when a DMCA notice did not work because the host server was located outside the United States.

Piracy of copyrighted materials is a great concern today, and will be for the foreseeable future. The revolutionary technologies that allows us to instantaneously stay in touch with family, friends and loved ones, also allows us to infringe the intellectual property rights, particularly the copyrights, of those who strive to create original works. The problem is all to clearly understood, but the solutions are wholly inadequate if you are not willing to stand up for your rights yourself. Unfortunately, that means an ever increasing amount of time spent policing and enforcing your copyrights.