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.

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.)

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 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.

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.

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.

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.