Protecting Your Content from Pirates: Part 1
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Protecting Your Content from Pirates: Part 1
I. What Online Content Is Protected by Copyright Law?
The United States Constitution, in an effort “to promote the Progress of Science and useful Arts,” guarantees certain rights to the creator of “original works of authorship,” including literary, dramatic, and artistic works. It also has been recognized by the courts to include website content.
Any original work of authorship that is fixed in a tangible medium of expression – which includes a web page – is protected by copyright. Your web content is protected regardless of whether you have registered it with the Copyright Office; labeled it with a copyright notice; or even published it. However, registering your copyright is a very good idea!
II. What Constitutes a Violation of Copyright?
Generally, you have an exclusive right:
• To reproduce your web content;
• To prepare content based upon your web content;
• To distribute copies of the content to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To display your web content publicly; and
• In the case of sound recordings, to distribute the content publicly by means of a digital audio transmission.
As a copyright holder, you can prohibit others from engaging in any of the above acts with respect to your web content. Anyone who does so without your permission or other legal justification is said to have infringed upon your copyright.
Acknowledging the source of copyrighted web content is not a substitute for obtaining permission.
III. Can Someone Copy My Web Content Without Violating My Rights?
The protection of the copyright law is not unlimited. The law recognizes that giving authors and artists an unlimited, perpetual right to control the copying and distribution of their works would actually stifle, rather than promote, the “Progress of Science and Useful Arts.” For example, after a certain period of time, copyrighted works lose their protection and pass into the “public domain.”
Perhaps the most frequently invoked – and most confusing – defense to a claim of infringement, however, is the “fair use” doctrine. This requires the courts to weigh and consider four factors:
• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.
Generally, critical and scholarly works are more likely to be considered “fair use” than commercial works that make use of copyrighted content. Similarly, copying a small excerpt is more likely to be considered “fair use” than copying a substantial portion of a copyrighted work. However, there are no “absolute” protections; the four-factor test must be applied to the specific circumstances of each case.
IV. Locating Copyright Infringement:
Of course, before you go after infringers, you have to find them. If you’re serious about cracking down on copyright violators, you’ll want to get acquainted with some of the tools available to locate such miscreants. There are both paid and free utilities. Some are more focused on locating copied text, while other are image-oriented; you may want to use a combination of utilities, depending on your needs.
One tool, Copyscape, comes in both paid and free versions. Both versions are effective in locating infringement of your text. You can also use Google Alerts, originally designed to track topics of interest to web surfers, to track down web content pirates. Just go to www.google.com/alerts; create an account if you don’t have one already; and paste in your content. You’re limited to 2048 characters, but that should be plenty, especially if your content contains distinctive phrases.
If you’re a photographer or graphic designer, consider using a digital watermarking service such as Digimarc. Digimarc offers a tracking service to let you know where your images are being used on the Web.
V. What To Do When You’ve Found an Instance of Copyright Infringement
First, locate the website owner’s email address. Sometimes this information will be available on the “Contact Us” page or on a “Legal Information” page on the infringing website itself. You can also look up the Administrative Contact using the WHOIS database. If the contact information on the site and in WHOIS are different, send a copy of your email to both email addresses. If the infringer uses private domain registration and does not have any contact information on their site, proceed directly with filing a DMCA, as explained below.
Your email should be courteous, not antagonistic. Inform the infringer that you are the owner of the content and that you do not want it copied on other sites without your permission. It isn’t necessary to threaten a lawsuit or start quoting from statutes. Simply ask them to remove the content. Most of the time, they will comply.
If they do not remove the infringing content, file a notice with the infringer’s web hosting company under the Digital Millenium Copyright Act (DMCA), requesting that the infringing content be taken off the site. The process for filing a DMCA notice will be explored in greater detail in Part 2 of this article.
If these efforts do not succeed in getting your content removed from the infringing site, consider consulting an attorney. You may also want to consult an attorney if you have any doubt as to whether your web content is indeed copyrighted, or what your rights are under copyright law.
Conclusion:
Now that we’ve summarized the general law of copyright as it applies to web content and outlined the appropriate response to an infringement, we’ll look at the specific steps necessary to exercise your rights under the DMCA. In Part 2 of this article, we’ll learn how to contact the infringer’s Internet Service Provider (ISP), hosting company, and any search engines listing the infringing website.
Disclaimer: Web Hosting Help Guy is not an attorney, and nothing in this article should be construed or relied upon as legal advice. InMotion Hosting, Inc. expressly disclaims all liability or responsibility for any direct, indirect, incidental, special, consequential, or other damages arising from reliance on this article. If you have a copyright issue, please seek counsel from a licensed attorney.
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