Use DMCA Takedown Notice to Battle Copyright Infringement

Finding an unauthorized use of your photograph on the web is upsetting. But what can you do about it? You can contact an attorney for assistance. But if you haven’t registered your photo in advance of the infringement, then you won’t be eligible for statutory damages. Attorneys will take such cases on contingency only under certain circumstances. It then will cost a lot to pursue the infringement when paying the attorney an hourly fee. In the alternative, you can send a cease and desist and/or a demand for payment yourself to the infringer. But such letters are often ignored.

Fortunately, the Digital Millennium Copyright Act (DMCA) gives you another option.

Enacted in 1998, the DMCA implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects photographers directly in this situation. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright in­fringement after it receives proper notice.
If you find a website that is using one of your images without permission, contact the hosting ISP to report the infringement. The letter you send is called a “DMCA takedown notice.” The ISP is required to make its agent’s name and address available so that you can send them notification. Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this DMCA provision.

So how do you find the hosting ISP? You first do a "who is" search on the website name. We’ll use my wildlife photography website at www.vividwildlife.com as an example. Several websites provide “whois” service. Conduct an Internet search to find them. The search at http://www.whois.net looks like this:

The results are:

Note there the domain's server information. Conduct a “whois” search on DOMAINCONTROL.COM to find the company information that is hosting the domain proxy servers.
You may send your DMCA takedown notice to the administrator of the domain servers:
You also may find the DMCA contact information by using www.domaincontrol.com as the URL, which gives this result:

When you go to http://www.wildwestdomains.com/, you’ll see a link to “Legal Agreements” at the bottom of the home page:

When you click on “Legal Agreements,” you’ll find the link to “Trademark and/or Copyright Infringement Policy.”


When you notify the ISP of infringement, your letter must meet certain requirements. Specifically, your notification must:

Be in writing;
Be signed by the copyright owner or agent; your electronic signature is OK;
Identify the copyrighted work that you claim has been in­fringed (or a list of infringements from the same site);
Identify the material that is infringing your work;
Include your contact info;
State that you are complaining in “good faith;”
State that, “under penalty of perjury, that the information contained in the notification is accurate;” and
State that you have the right to proceed (because you are the copyright owner or the owner’s agent).
Send a letter like the following to make your claim:


VIA Email at ISPHosting@isp.com



Re: Copyright Claim
To the ISP Hosting Company:
I am the copyright owner of the photographs being infringed at:

http://www.vividwildlife.com/Alaska.htm

http://www.vividwildlife.com/links.htm

Copies of the photographs being infringed are included to assist with their removal from the infringing websites.

This letter is official notification under the provisions of Section 512(c) of the Digital Millennium Copyright Act (“DMCA”) to effect removal of the above-reported infringements. I request that you immediately issue a cancellation message as specified in RFC 1036 for the specified postings and prevent the infringer, who is identified by its web address, from posting the infringing photographs to your servers in the future. Please be advised that law requires you, as a service provider, to “expeditiously remove or disable access to” the infringing photographs upon receiving this notice. Noncompliance may result in a loss of immunity for liability under the DMCA.
I have a good faith belief that use of the material in the manner complained of here s not authorized by me, the copyright holder, or the law. The information provided here is accurate to the best of my knowledge. I swear under penalty of perjury that I am the copyright holder.
Please send me at the address noted below a prompt response indicating the actions you have taken to resolve this matter.
Sincerely,
Renee Halfen

After the ISP receives the notice, it should remove the infringing materials.
Infringements are much too common these days. Fortunately, there are tools to fight them – the DMCA takedown notice is one of the powerful ones.

Internet and copyright

Copyright law is supposed to work the same on the Internet as it does in the
more tangible worlds of print and the fine arts. However, once works are put
into digital form and uploaded into cyberspace, keeping track of copyright ownership
and enforcing copyright becomes difficult.

Works cast in digital form can more easily be copied and modified than when
they exist on paper or canvas, and it can be difficult to know when the line between
copyright violation and permissible copying of ideas has been crossed.
Also, once a work is posted on the Internet, it can simultaneously be copied by
millions of users in many different countries, even if the copying is illegal. There
is no practical way to reassert control over the work so that the copyright can be
meaningfully enforced.

In an attempt to establish some regulation and predictability for copyrights on
the Internet, Congress enacted the Digital Millennium Copyright Act (DMCA).
Among other things, the DMCA prohibits circumvention of digital antipiracy devices
and the removal of secret codes known as digital watermarks from digital
files. The DMCA also limits liability for companies that provide access to the
Internet (Internet Service Providers—ISPs) in the event that an infringing copy is
offered online. In addition, the DMCA establishes licensing standards by which
companies can webcast music (broadcast over the Internet).

Despite passage of the DMCA, technology has continued to outpace copyright
legislation, and new, unresolved issues have emerged in cyberspace such as
linking, framing, and file sharing. For example, website owners may be liable as copyright infringers for creating links to infringing materials. One company ran
into problems when framing—placing the contents of one website within a
frame of another website—because the process resulted in the creation of a derivative
work. Downloading music, particularly through the use of an Internet
technology known as MP3, has triggered litigation and debate as to what constitutes
infringement and fair use. In a case that awakened the world to the issue of
copyright law, Napster, a website that provides file sharing of MP3 files, was
sued by the recording industry in 2000. The company was forced to modify its
methods of providing file sharing in 2001, eventually folded and later emerged
as a paid service.

A similar result occurred when, in 2001, a programmer was prevented from distributing
code that circumvented DVD technology allowing computer users to
copy DVDs.

Digital Millennium Copyright Act

This federal statute addresses a number of copyright issues created by the increasing
use of the Internet for commerce in materials protected by copyright.
Because the Digital Millennium Copyright Act (DMCA) is relatively new, it has
recently undergone much interpretation by the courts and by copyright experts.
What has made the DMCA controversial—and why some critics have labelled
it as a para-copyright law—is that it outlaws attempts to get around processes,
methods, or devices that limit copying of copyrighted works. For example, if a
copyright owner installs a digital rights management (DRM) system that limits
copying of a motion picture and a user circumvents the system (even without
copying the underlying movie), a violation of the DMCA has occurred. In short,
the DMCA has made it possible for a person to violate copyright law without infringing
a copyright.

The Act has numerous exceptions allowing for override of DRMs, including:
• works exempted by the Copyright Office, under rules to be issued in the future
• nonprofit libraries, archives, and educational institutions who need to decide
whether to add the protected work to their collections • reverse engineering for the purpose of determining interoperability (the
ability of computer programs to exchange information, and of such programs
mutually to use the information which has been exchanged)
• legitimate encryption research
• legitimate security testing
• law enforcement and intelligence activities, and
• legitimate consumer privacy needs (the need to disable the protective device
in order to prevent the unwanted acquisition of personal information
or the tracking of activities on the Internet).
The DMCA also prohibits the production, marketing, or sales of a product or
service designed to circumvent these technological protections. For example,
the movie industry was able to use the DMCA to prohibit circumvention of DVD
technology when it stopped a programmer from distributing a software code designed
to decode DVDs and permit their copying. (Universal City Studios Inc. v.
Corley, 273 F.3d 429 (2d Cir. 2001).)
The DMCA also puts restrictions on the import, distribution, and sales of analog
video cassette recorders and camcorders that don’t have a certain type of
copy-proof technology.

The DMCA prohibits the falsification of copyright management information
and the distribution of works that contain such falsified information.
The DMCA contains a number of provisions relating to transmission of copyrighted
materials over Internet services providers (ISPs). The DMCA takes ISPs off
the hook for infringement for transient transmissions automatically passing
through their computers. Under its “safe harbor” provisions, the DMCA also allows
ISPs to escape liability for infringement regarding more permanent materials
if they promptly remove infringing materials upon request. The DMCA sets
up a procedure in case the owner of the removed materials protests. In exchange
for escaping liability for infringement, service providers must designate
an agent to accept service of legal papers. The DMCA also relieves ISPs from liability
for unknowingly linking to a site that does contain infringing material. Finally,
the DMCA authorizes U.S. District Court clerks to issue subpoenas to
service providers requiring them to identify an alleged online infringer.
An example of how a safe harbor was used occurred when America Online
avoided copyright infringement liability for USENET postings in a case involving
famed science fiction writer Harlan Ellison. Ellison discovered that a fan had
scanned many of his short stories and uploaded them to the USENET newsgroup
alt.binaries.e-book. (USENET is an abbreviation of “User Network,” an international message board for members, called peers, whose computers connect to
each other via the Internet.)

Ellison filed suit against the fan and, among others, America Online (AOL), alleging
copyright infringement. He claimed that AOL was liable because the
newsgroup content was temporarily stored on AOL’s servers that are accessed
by its many subscribers.

The court concluded that AOL was shielded from liability by the safe harbor
for transitory communications because: (1) it satisfied the threshold requirements
for safe harbor protection discussed above; (2) AOL did not select, modify, initiate,
or direct the uploading of the copied stories or select who would receive
them; and (3) AOL’s storage of USENET messages—including the copied stories—
was transitory and not for longer than necessary to transmit or rout them to
users—this even though the messages were kept on AOL’s servers for 14 days.
(Ellison v. Robertson, 189 F.Supp. 2d 1051 (C.D. Cal. 2002).)

The DMCA allows a copy of a computer program to be made for the purpose
of repairing or maintaining a computer. In addition, the DMCA contains new
laws regarding the licensing of motion pictures and phonorecordings and the innovative
designs of vessel hulls.

Violations of the DMCA can result in civil remedies consisting of injunctive
relief, actual damages, and statutory damages. Repeat violators may be tagged
with treble damages. A willful violation of the DMCA for personal or financial
gain can result in stiff criminal penalties (up to ten years in prison).
The first criminal prosecution under the DMCA occurred when the U.S. government
indicted Dmitri Sklyarov for creating and distributing software that
could permit electronic book owners to convert the Adobe e-Book format. A
jury later acquitted Sklyarov of all criminal charges.

One of the most novel attempts at applying the DMCA occurred in 2003 when
a printer manufacturer, Lexmark, sued a rival company, Static Control Components,
that sold replacement toner cartridges. Lexmark’s printers contained a
software program that read information embedded on a chip in the toner cartridge.
If the toner wasn’t “authorized” (made by Lexmark or a licensee), the
toner cartridge would not work in the printer. Static Control created Smartek
chips that sent a message to the Lexmark printer authorizing the use of its toner
cartridges. Lexmark argued that the Smartek chips circumvented Lexmark technology
in violation of the DMCA. In March 2003, a district court in Kentucky
agreed with Lexmark and enjoined Static Control from selling its Smartek chip or
incorporating it in cartridges. (Lexmark International Inc. v. Static Control Components
Inc., 253 F.Supp. 2d 943 (E.D. Ky. March, 2003).)

How is a copyright created?

A creative work is protected by copyright the moment the work assumes a tangible
form—which in copyright circles is referred to as “fixed in a tangible medium of
expression.” Contrary to popular belief, providing a copyright notice and/or registering
the work with the U.S. Copyright Office are not necessary to obtain basic
copyright protection. But there are some steps that can be taken to enhance the
creator’s chances for success if he or she turns to the courts to enforce a copyright:

• Place a copyright notice on a published work. The copyright notice, or
“copyright bug” as it is sometimes called, commonly appears in this form:
“© (year of publication) (author or other basic copyright owner).” By
placing this notice on a work that is published (distributed to the public
without restriction), the author prevents others from copying the work without
permission and claiming that they did not know that the work was
covered by copyright. This can be important if the author is forced to file a
lawsuit to enforce the copyright, since it is much easier to recover significant
money damages from a deliberate (as opposed to innocent) copyright
infringer.

• Register works with the U.S. Copyright Office. Timely registration of the
copyright with the U.S. Copyright Office—that is, registration within three
months of the work’s publication date, or before the infringement actually
begins—makes it much easier to sue and recover from an infringer. Specifically,
timely registration creates a legal presumption that the copyright is
valid and allows the copyright owner to recover up to $150,000 (and possibly
attorney fees) without proving any actual monetary harm. Registration
is accomplished by filing a simple form and depositing one or two samples
of the work (depending on what it is) with the U.S. Copyright Office. The
U.S. Copyright Office registration currently costs $30 for each work.
(Sample registration forms are provided later in this part.)

Dealing with Linked Files

When you’re dealing with an image file or any content that is linked into a Web page (not part of the actual HTML) it is important to make sure that you get the correct information about where that particular file is hosted, not just the page that it is on.

The solution is pretty simple:

1. Get the URL of the File: Rather than copying the URL of the page, right click the image or the link and copy the URL. Check and see if it is on the same site, a subdomain or another domain altogether.


2. Use Who Is Hosting This: Once you have the URL, delete the “http://” as well as everything including and after the first remaining “/” and process it through Who is Hosting This. Who Is Hosting This handles subdomains correctly, unlike Domain Tools, which strips out subdomain information in my testing.


3. Confirm the Results: You can then confirm the results by copying the IP address (you’ll have to actually copy the numbers on the site, not using the link) and then running it through Domain Tools. Once you’ve done that, you can then go forward and begin the work of finding the DMCA or abuse agent and contacting them.

Though this adds a few extra steps to the process, it is worth doing to ensure that you contact the correct party as doing so is the only way to guarantee the quickest and most reliable resolution.

Why This is Important

The reason that this is critical is because sending a DMCA notice to the wrong host, at the very least, will greatly slow down the process as the host has to research and figure out what is going on and then decide if they going to A) Disable the page anyway B) Forward the notice on or C) Do nothing.
Since the company that hosts the Web site does not host the image, their role under the DMCA is much less clear. Section 512(c), which usually deals with Web hosts and takedowns, only pertains to “the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”. Since there is no storage, a regular DMCA notice doesn’t apply.
Section 512(d) does pertain to “information location tools” but in that case, it would be the site owner, not the host that is party for the notice. This section deals with sites, such as Google, that are “referring or linking users to an online location containing infringing material or infringing activity”. Since the host isn’t the one linking to the file, it is the user, the application of 512(d) doesn’t make as much sense.
This isn’t to say that hosts won’t deactivate sites or remove pages if the content is embedded or hyperlinked, especially if the site is spammy in nature or has other abuse issues, but the fastest way to secure removal of images or other media files is to go to the source.
It can be a bit tedious to do, but it is well worth the time.

Bottom Line

The simple truth is that the days of all of the content on a site being hosted on the same server have long since passed. Content embedding from photo sharing sites, video sites and elsewhere have made it much more difficult easily track down where a particular item is hosted.

Though sometimes, as with YouTube clips, where the content is hosted is obvious, other times, as with image hosts, it is much less clear.

Unless you are dealing with textual works, which are almost never embedded (unless you use a service such as Voxant Newsroom that embeds text via Flash and JavaScript), this is something you have to constantly watch out for.

Dealing with content theft issues is not difficult, but it does require a bit of detective work. However, knowing the challenges you face and the tools that can help you overcome them can keep the sleuthing required to a minimum.

DMCA Complaints

What do you do if original content from your website or blog is stolen and republished in full on another site? You fight back!

A splog or “spam blog” is a blog that steals content from other web sites, then aggregates and republishes the content on its own blog. Splogs are created primarily to make money from ads shown on the splog and/or promote affiliated web sites. Splog owners are too dishonest, lazy or stupid to create their own original content and instead thieve yours.

Splogs are harmful because they effectively steal a portion of your blog’s search engine ranking, traffic and ad revenue.


Fight the Good Fight
Recently a popular article on DevTopics was stolen and republished by at least three splogs. By following the steps below, fortunately I was able to convince all three splogs to remove my copyrighted article, and one site has since gone offline. If you are interested to see what a splog looks like, the two remaining splogs are: googit.blogspot.com -and- 2daytrends.blogspot.com. At least Googit includes a link back to the original article, whereas 2DayTrends typically removes all author and source information. Lame!

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that heightens the penalties for copyright infringement on the Internet. When someone steals your original content, the best recourse is to file a DMCA complaint.


Cease & Desist Message
If you discover a website has republished your original content without permission, the first step is to ask the splog to remove your content from its site. The best way to do this is to post a comment under your article on the splog for all its readers to see. You can use the following text as a guide:

This is a Notice of Infringement as authorized in § 512(c) of the U.S. Copyright Law under the Digital Millennium Copyright Act (DMCA).

This article is an unauthorized reproduction of copyrighted material originally found at:
[http://www.infringingsite.com/...]

Please remove this article immediately or we will file an official complaint with the U.S. Copyright Office, FeedBurner and Google, Inc. Google’s response may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers.

Thank you,
[My Name]

DMCA Complaint
If a splogger refuses to remove your copyrighted content, the next step is to file official DMCA complaints. The most effective attack is to hit the splog where it hurts: in the pocketbook. If you can alert the splog’s advertisers, typically they will suspend the splog’s account and cut off its revenue stream.

Ideally you should file a DMCA complaint with each of the splog’s advertisers, its web host, feed service, the U.S. Copyright office, and of course the splog itself, if you are lucky enough to find contact information.

The letter below serves as a template for your DMCA complaint. Note that you must include at least the information listed below, with numbered paragraphs, and items #4 and 5 MUST be included exactly as written. Usually you have to send these complaints via regular mail or fax, not by email.

Date: [January 28, 2008]

[Google, Inc.
Attn: AdSense Support, DMCA complaints
1600 Amphitheatre Parkway
Mountain View CA 94043]

To Whom It May Concern,

This letter is a Notice of Infringement as authorized in § 512(c) of the U.S. Copyright Law under the Digital Millennium Copyright Act (DMCA). I wish to report an instance of Copyright Infringement. The infringing material appears on the Service for which you are the designated agent.

1. The copyrighted material, which I contend belongs to me and appears illegally on the Service, is the following:
Blog article titled “[My Original Article]” written by [My Name], posted on [January 11, 2008] at [http://www.infringingsite.com/...]

2. The unauthorized material appears at the website address:
[http://www.splog.com/...]

This site appears in Google search results for “[Search Terms]” as well as other search terms.

3. My contact information is as follows:

[My Name]
[My Address]
[My Phone]
[My Email]

4. I have a good faith belief that use of the copyrighted materials as described above is not authorized by the copyright owner, its agent, or the law.

5. I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

[Your Signature]

[Your Name Printed]

Prevention
There are a few things you can do to help protect your blog from content theft:

Post copyright notices prominently on your Web site. Consider adding a copyright notice to each blog post and RSS feed as well.
In your blog posts, include plenty of links to related articles elsewhere in your blog. However, some new splog software will automatically strip links.
Do not include entire articles in RSS feeds. Instead, use the “More” tag.
Use an automated tool such as Copyscape to search for sites stealing your content.
Insert a “watermark” code or series of keywords into your blog posts, then use a service like Google Alerts to notify you when those keywords appear elsewhere on the Web.

How to Fill DMCA Complaint to Google

Content theft is very big problem for site and blog owners to protect from Plagiarism there is a rule called Digital Millennium Copyright Act (DMCA).Some blogspot or blogger blogs copy and paste the content from other site as they think that google favours blogspot.com blogs in search results.If you ever discover a blogspot blog copying content from your website without permission you can file a DMCA complaint to Google and they will take legal actions against the blogspot blog owner but this process is not so easy as google only accepts DMCA complaint via fax or snail mail.

Well, not anymore.If you don’t own a fax machine or don’t want to spend few bucks for a web based fax service here is a good news.Google has stoped the fax or mail requirement for Blogger and you can now submit DMCA complaints to Google online via an online form click here to fill the complaint form.

This facility is only available for filling DMCA complaints against blogspot blogs but if you want to fill the complaint against other google sites like Orkut, Google Base, Adsense you will still have to relly on fax or snail mail.

How Intellectual Property Law Works

In simple terms, intellectual property is a product of the human intellect that has
commercial value. Intellectual property encompasses a wide range of creations—from fiction, poetry, songs, designs, and artwork to ads, product names, mechanical inventions, processes, chemical formulas, machines, and software.
The commercial value of intellectual property comes from the ability of its owner to control its use. If the owner could not legally require payment in exchange for use, ownership of the intellectual property would have intellectual worth but no commercial value.

EXAMPLE 1: Jenice writes a novel about romance in cyberspace. As the author/owner, she has the legal right to prevent others from reprinting the book, making a movie, or creating a television miniseries based on the novel. It is this right that can produce revenue for Jenice: She can sell publishing rights to a publisher, movie rights to a movie producer, and television rights to a network in exchange for royalties based on book, movie, and TV proceeds.

EXAMPLE 2: Tony invents a process for inserting modified genes into cancer cells. He applies for and receives a patent, a monopoly awarded by the federal government that allows Tony to require anyone who wants to use the process to pay him a negotiated license fee. If no one wants to use the process, Tony won’t make any money (unless he uses it in his own gene
therapy clinic).


Intellectual property law is an umbrella term for all the statutes, government regulations, and court decisions that together determine who owns intellectual property and what rights go along with that ownership. In addition, intellectual property law specifies:

• the conditions under which intellectual property rights may be sold or
loaned (licensed) to others for specific purposes
• how to settle contract disputes that arise from marketing intellectual
property, and
• how to take advantage of government procedures and programs that
establish or enhance protection of intellectual property rights.

Intellectual property law primarily offers protection to the owner of intellectual property by giving the owner the right to file a lawsuit asking a court to enforce whatever rights are being transgressed. As a result, some experts describe intellectual property laws as “affirmative rights” rather than as “protection.” Noted patent attorney and author David Pressman suggests thinking of intellectual property laws as tools that can be used when needed, but not as any kind of defensive shield. In other words, intellectual property laws won’t prevent someone from stepping on the owner’s rights. But the laws do give an owner the ammunition to take a trespasser to court. For example, upon request of the copyright owner, a court will halt unauthorized copying of material protected by the copyright. But if the copyright owner does not sue the copier, no action will be taken and the copier will get away with this illegal behavior.

Types of intellectual property laws

Intellectual property law consists of several discrete legal categories. Although
these categories can overlap with respect to a particular intellectual property, they
each have their own characteristics and terminology.

• Trade secret law affords the owner of commercial information that provides
a competitive edge the right to keep others from using such information
if the information was improperly disclosed to or acquired by a
competitor and the owner of the information took reasonable precautions
to keep it secret.
• Copyright law protects all types of original creative expression, such as that
produced by authors, composers, artists, designers, programmers, and Web
page designers. However, copyright law does not protect the ideas and
concepts underlying an expressive work; it only protects the literal form the
expressive work takes. For example, copyright protects the actual words
used to write a novel about life on a submarine where the crew faces almost
certain death because of damaged engines. But copyright won’t prevent
other writers from either writing novels about submarine life or using the
same basic plot, as long as they don’t copy the first novelist’s literal expression.
Copyright protection lasts a long time, often 100 years or more.
• Trademark law protects the distinctive (unique, creative, or well known
through use) names, designs, logos, slogans, symbols, colors, packaging,
and containers and any other devices that are used by businesses to identify
the source of their goods and services and distinguish them in the marketplace.
This protection can last indefinitely.
• Patent law gives the inventor of a new and nonobvious invention the right
to exclusive use of that invention for a limited term. How long the inventor
retains the exclusive right depends on the kind of patent. A utility patent (the most common type of patent) goes into effect when issued by the U.S.Patent and Trademark Office and expires 20 years after the application forthe patent was filed. A design patent (for a new but nonfunctional design)lasts 14 years after the date the patent issues. A plant patent expires 20years from the date the patent was filed.

Unfair competition laws

Courts are frequently asked to intervene when one business uses unfair tactics to
compete with another business. Among the unfair tactics the courts have condemned
is a business trying to lure customers away from a competing business by
confusing customers as to which business or products they are dealing with. The
most common way to confuse customers is for a second business to market its
goods or services under a name or other mark that is confusingly similar to that
used by the first business on its goods or services.

Although courts originally decided these types of disputes without the benefit of a
legislative enactment, Congress and most state legislatures have now legislated the
basic principles developed by the courts to deal with unfair business practices. All
together, these court decisions and statutes are termed unfair competition law.
And under this body of law, a business may obtain a court order preventing a
competitor from engaging in unfair business practices.

Unfair competition is not usually considered a separate branch of intellectual
property law, as it targets general business practices rather than intellectual property
as such. However, because the use of misleading names and marks to improperly
lure customers away from another business is also very much what trademark law
is concerned with, the two types of law often overlap.

EXAMPLE: The name used by Richard’s Cuisine is very ordinary and not distinctive
enough to be considered a trademark. If, however, another business opens up
down the street under a “Richards’s Cuisine ” sign, the courts may use unfair competition
laws to force the second user to modify the name to distinguish it from the first.

International copyright laws

Under a variety of treaties, most countries in the world offer protection to U.S.intellectual property used abroad. And, under these same treaties, the U.S. protectsintellectual property created in these other countries. Several major internationaltreaties—the Berne Convention is the most important—govern rights in copyrights in most countries. International patent rights are broadly recognized under the ParisConvention and the Patent Cooperation Treaty. Trademark owners also have someinternational rights and obligations under the Paris Convention and Madrid Protocol.And trade secrets receive international protection under GATT (General Agreementon Tariffs and Trade).

Legal Basis of Intellectual Property Laws
The sources of intellectual property laws vary according to the subjectmatter. Trade secret law derives both from federal and state legislation andfrom court cases that have developed their own set of principles used todecide new trade secret cases that come before them (termed the “commonlaw”). Trademark and unfair competition laws originate primarily in bothfederal and state statutes, but also, especially in the area of unfair competition,come from court decisions that apply principles developed by earlier courtsas part of the common law. Copyright and patent laws originate in the U.S.Constitution and are specifically and exclusively implemented by federalstatutes. In all these intellectual property areas, court decisions interpretingand enforcing applicable statutes also provide an important source ofintellectual property law.

Intersection of intellectual property laws

Although each category of intellectual property law is aimed at a particular type of
intellectual property, trade secret, copyright, patent, and trademark laws occasionally
intersect with each other with respect to a particular intellectual property
item. Some common examples of this are as follows:

• Trade secret and copyright. It is possible to maintain a work of expression
as a trade secret and still have it protected by copyright up until the time
that it is published—that is, distributed to the public on an unrestricted
basis. This is because the nature of trade secret law arises from the actions
taken by the owner of the work to keep the work secret for the purpose of
getting a jump on competitors, while copyright law automatically applies
to any work of expression the instant it becomes fixed in a tangible form.The best example of an intellectual property item that is usually protected
by both copyright and trade secret law is the written code underlying most
computer software (called source code).

• Trade secret and patent. It is possible to pursue a patent application while
simultaneously maintaining the invention as a trade secret, at least for the
first 18 months of the U.S. patent application process. The U.S. Patent and
Trademark Office (PTO) treats applications as confidential until they are
published. Unless the applicant files a Nonpublication Request at the time
of filing, and doesn’t file for a patent outside the U.S., the PTO will publish
the application within 18 months of the filing date. This publication effectively
ends trade secret protection. If the applicant will not be filing abroad,
the trade secret information in the patent application is kept confidential
and is only published if the PTO grants the patent. At that point, the applicant
gives up trade secret rights in order to obtain patent rights. If the applicant
is not filing abroad and the patent application is rejected, the trade
secret will remain intact and the competition will not know about the invention.

• Copyright and trademark. These laws may apply to the same item. For
instance, the expressive artwork in a package design may be protected by
copyright, while the overall look and feel of the package may be protected
as trade dress (a form of trademark). Likewise, an advertisement may
include some material covered by copyright (for example, a jingle) and
other material covered by trademark (the product or company name). The
difference here is that copyright protects the literal expression, while trademark
protects whatever is used to designate the source of a product or
service being offered in the marketplace.

• Patent, copyright, and trademark. Patent law can intersect with copyright
and trademark law in the area of product configuration. In short, when it
comes to a product design—say, jewelry or a toy—the creator may, at least
theoretically, be able to invoke any or all of these three approaches to
intellectual property protection. (The reason we use the word “theoretically”
is that courts always are trying to distinguish among the different forms of
intellectual property and are prone to restrict the contexts in which they
overlap.)

EXAMPLE: A design patent can issue on the new, unobvious, nonfunctional
design of an article of manufacture—for example, stylistic ornamentation
added to a pair of eyeglasses. Trademark law may be used to protect the
appearance of the ornamentation if it is intended to be—and is—used to distinguish
the particular brand of eyeglasses in the marketplace. And copyright
law may also be used to protect certain expressive aspects of the design.

• The Internet. The Internet has proven to be a flashpoint for those enforcing
trade secret, copyright, trademark, and patent rights. A simple Web page
may give rise to numerous overlapping issues. Linking—the practice of
connecting Web pages—has been the subject of copyright, trade secret,
and trademark infringement cases. Downloading files has triggered copyright
and trade secret lawsuits. The methods used in creating websites,
maintaining Web business, or accessing the Internet have led to patent and
trade secret battles. Fortunately, many of the early issues about Internet use
have been settled, and some concerns about overlapping intellectual property
law have been resolved. But stay tuned—new developments on the
Web continue to cause litigation and turf wars.

What legal rights apply to your creative work?

If you are concerned with a creation of your own, you’ll first need to know what
form (or forms) of intellectual property applies to it in order to get to the right part
of this book. These basic rules should point you in the right direction:

• Trade secrets consist of designs, devices, processes, compositions, techniques,
formulas, information, or recipes that are kept secret by their owner
and which give their owner a competitive business advantage.
• Copyrights protect original and tangible forms of expressing creative ideas,
but not the ideas themselves. A creative nonfunctional design may be
copyrightable.
• Utility patents apply to new processes, machines, manufactures, or compositions
of matter, or new uses of any of the above if they are novel,
nonobvious, and useful.
• Design patents apply to nonfunctional, ornamental, or aesthetic design elements
of an invention or product.
• Plant patents may be issued for any asexually or sexually reproducible
plants (such as flowers) that are both novel and unobvious.
• Trademarks apply to marketing devices: the name of a product or service
or the symbols, logos, shapes, designs, sounds, or smells used to identify it.
They must be distinctive or have become well known through long use or
advertising.
• Unfair competition is a legal theory that extends protection to certain kinds
of intellectual property when trademark, copyright, and patent law don’t
apply. It applies when one business represents its products or services in a
way that confuses customers and stops them from buying from another
business.

What is a copyright?

Probably the best known of intellectual property categories, copyright
automatically applies to all types of original expression, including art, sculpture,
literature, music, songs, choreography, crafts, poetry, flow charts, software,
photography, movies, CD-ROMs, video games, videos, websites, and graphic
designs. The automatic protection can be enhanced by registering the work with
the U.S. Copyright Office for a nominal fee.

Copyright lasts for many years. Most often it lasts for the life of the work’s
creator (its author) plus 70 years. In cases where the creator is a business, the
copyright lasts between 95 and 120 years. Although copyright protection is longlived,
it only applies to the literal expression, not to the ideas and concepts underlying
that expression.

Most nations of the world offer copyright protection to works by U.S. citizens
and nationals, and the U.S. offers its copyright protection to the citizens and
nationals of these same nations.

A copyright gives the owner of a creative work the right to keep others from using
the work without the owner’s permission. The key to understanding copyright law
is to understand the difference between an idea and the expression of the idea.
Copyright applies only to a particular expression, not to the ideas or facts underlying
the expression. For instance, copyright may protect a particular song, novel,
or computer game about a romance in space, but it cannot protect the underlying
idea of having a love affair among the stars.

More specifically, a creative work (often referred to as a “work of authorship”)
must meet all of these three criteria to be protected by copyright:
• It must be original. In other words, the author must have created rather
than copied it.
• It must be fixed in a tangible (concrete) medium of expression. For
example, it might be expressed on paper, audio or video tape, computer
disk, clay, or canvas.
• It must have at least some creativity—that is, it must be produced by an
exercise of human intellect. There is no hard and fast rule as to how much
creativity is enough. To give an example, it must go beyond the creativity
found in the telephone white pages, which involve a nondiscretionary
alphabetic listing of telephone numbers rather than a creative selection of
listings.

Who owns a copyright?

With three important exceptions, copyrights are owned by the writers, poets,
musicians, choreographers, composers, artists, software designers, sculptors,
photographers, movie producers, craftspersons, and other persons who create
them. In the copyright world, these people are all called “authors.”
Now for the exceptions:
• If a work is created by an employee in the course of his or her employment,
the work is called a “work made for hire” and the copyright is owned by
the employer.
• If the work is commissioned (created by an author working as an independent
contractor) and the parties sign a written work made for hire agreement,
the copyright will be owned by the commissioning party as long as
the work falls within one of the statutory categories of commissioned works
that can qualify as works made for hire.
• If the author sells the copyright to someone else, the purchasing person or
business owns the copyright.

How long does copyright protection last?

As a result of the Copyright Term Extension Act of 1998, most copyrights for works
published after January 1, 1978 last for the life of the author plus 70 years. However,
in the following circumstances, the copyright lasts between 95 and 120
years, depending on the date the work is published:

• the work belongs to the author’s employer under the work made for hire
law
• the work was commissioned under a work made for hire agreement (and
fits within one of the categories of works that qualify for work made for hire
treatment), or
• the author publishes and registers the work anonymously or under a pseudonym.
After a copyright expires, the work goes into the public domain, meaning it
becomes available for anyone’s use.
For works created before 1978, the duration times are different:
• If the work was published before 1923, it is in the public domain (available
for use without permission).
• If the work was published between 1923 and 1963 and not renewed (see
duration of copyright), it is in the public domain.
• If the work was published between 1923 and 1963 and it was renewed, the
copyright lasts 95 years from the date of first publication.
• If the work was published between 1964 and 1977, the copyright lasts for
95 years from the date of publication.
• if the work was created before 1978 and published before December 31,
2002, the copyright lasts at least until December 31, 2047; if created before
1978 and not published before December 31, 2002, the copyright has
expired and the work is in the public domain in the United States.

What happens if a copyright is infringed?

In the event someone infringes (violates) the exclusive rights of a copyright owner,
the owner is entitled to file a lawsuit in federal court asking the court to:

• issue orders (restraining orders and injunctions) to prevent further violations
• award money damages if appropriate, and
• in some circumstances, award attorney fees.
Whether the lawsuit will be effective and whether damages will be awarded depends
on whether the alleged infringer can raise one or more legal defenses to the
charge. Common legal defenses to copyright infringement are:
• Too much time has elapsed between the infringing act and the lawsuit (the
statute of limitations defense).
• The infringement is allowed under the fair use defense.
• The infringement was innocent (the infringer had no reason to know the
work was protected by copyright).
• The infringing work was independently created (that is, it wasn’t copied
from the original).
• The copyright owner authorized the use in a license.

May a copyrighted work legally be used without an

Some uses of a copyrighted work are considered fair use—that is, the use may
infringe, but the infringement is excused because the work is being used for a
transformative purpose such as research, scholarship, criticism, or journalism.
When determining whether an infringement should be excused on the basis of fair
use, a court will use several factors including the purpose and character of the use,
amount and substantiality of the portion borrowed, and effect of the use on the
market for the copyrighted material.

It’s important to understand that fair use is a defense rather than an affirmative
right. This means that a particular use only gets established as a fair use if the
copyright owner decides to file a lawsuit and the court upholds the fair use defense.
There is, therefore, no way to find out in advance whether something will or
won’t be considered a fair use. Of course, if the copyright owner is willing to grant
permission for the use, then the uncertainty surrounding the use goes away. For
this reason, most people who propose to use a copyrighted work do what they can
to obtain permission, and only rely on the fair use defense if permission is not
granted or the copyright owner can’t be located.

A person who infringes a copyright but has good reason to genuinely believe
that the use is a fair use is known as an innocent infringer. Innocent infringers usually
don’t have to pay any damages to the copyright owner but do have to cease
the infringing activity or pay the owner for the reasonable commercial value of
that use.

What laws cover copyright protection in the U.S. and

In the U.S., copyright protection derives from the U.S. Constitution, which
requires that original works of authorship be protected by copyright. The current
(and exclusive) source of this protection is the federal Copyright Act of 1976, as
amended. There are no state copyright laws.

Copyright protection rules are fairly similar worldwide, due to several international
copyright treaties, the most important of which is the Berne Convention.
Under this treaty, all member countries (in excess of 100 countries, including
virtually all industrialized countries) must afford copyright protection to authors
who are nationals of any member country. This protection must last for at least the
life of the author plus 50 years and must be automatic, without the need for the
author to take any legal steps to preserve the copyright.

In addition to the Berne Convention, the GATT (General Agreement on Tariffs
and Trade) treaty contains a number of provisions that affect copyright protection
in signatory countries. Together, the Berne Copyright Convention and the GATT
treaty allow U.S. authors to enforce their copyrights in most industrialized nations,
and allow the nationals of those nations to enforce their copyrights in the U.S.