• What Every Business Owner and Individual Should Know About Preventing Their Work from Being Copied Online

    21 Apr 2014 Stephen C. Biggs Comments Off on What Every Business Owner and Individual Should Know About Preventing Their Work from Being Copied Online

    By: Stephen C. Biggs

    Imagine you are a business owner who spent countless hours drafting, designing, and finalizing the content, layout, and text of a brochure, website, or blog for your business.  You are proud of your work and confident it will help you generate new leads and impress current customers.  Or imagine you are a photographer who took a visually stunning photograph of a sunset, or a writer who just completed the final draft of an enthralling short story.  You, too, are proud of your work and the time, skill, and effort you put into creating it.  Now imagine that you, as the creator of one of these works, discover someone else has copied or posted your work on the Internet without your permission, perhaps even claiming your work as their own.  You are understandably angry and frustrated.  But what do you do to get the unauthorized copy of your work removed from the Internet?

    Image courtesy of 1shots / FreeDigitalPhotos.net

    Generally, the author or creator of an original work–be it literary, musical, dramatic, graphic, pictorial, audiovisual, or any combination of these or certain other types of original works–owns a copyright in the work, even if he or she has not registered the work with the United States Copyright Office.  The owner of a copyright holds the exclusive right to copy, reproduce, adapt, distribute, publicly perform, and publicly display the work.  When someone else violates any of these exclusive rights without permission, he or she has “infringed” the owner’s copyright.  The copyright owner possesses the right to prevent such infringement, and he or she may enforce that right by bringing a lawsuit against the infringer.

    But, like most litigation, lawsuits for copyright infringement are both time-consuming and expensive. With the explosion of online copyright infringement in the age of the Internet, copyright owners (like the business owner, photographer, and writer described at the beginning of this article) need tools short of actual litigation to protect their copyrighted works.  Fortunately, Congress created such a tool in 1998 when it passed, and the President signed into law, the Digital Millennium Copyright Act (“DMCA”).

    The DMCA gave birth to a new mechanism for copyright owners to expeditiously and inexpensively obtain the removal of, or render inaccessible, online material that infringes their copyrights.  This tool, commonly known as a “DMCA takedown notice,” has its origins in Section 512 of the DMCA (codified at 17 U.S.C. § 512).  In layman’s terms, that section protects certain Internet service providers (including companies that host websites or provide online search engines) from being successfully sued for copyright infringement involving material placed on the Internet by others, so long as the service provider, among other things, “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity” after receiving a notification of claimed infringement from the copyright owner or someone authorized to act for the copyright owner.  17 U.S.C. § 512(c), (d).  To be effective, the required notification (the “DMCA takedown notice”) must contain six elements:

    1. A physical or electronic signature of a person authorized to act on behalf of the copyright owner.
    2. Identification of the copyrighted work or works claimed to have been infringed.
    3. Identification of the infringing material (or, in the case of a search engine, the reference or link to the infringing material) that is to be removed or made inaccessible, and information reasonably sufficient to permit the service provider to locate the material.
    4. Contact information for the complaining party (i.e., the party filing the notification).
    5. A statement that the complaining party has a good faith belief that use of the infringing material is not authorized by the copyright owner, its agent, or the law.
    6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Image courtesy of Stuart Miles / FreeDigitalPhotos.net

    17 U.S.C. §§ 512(c)(3), (d)(3).  Thus, when a service provider that hosts websites (like GoDaddy) receives a DMCA takedown notice from a copyright owner alleging that a website it hosts contains infringing material, or when a service provider that operates an online search engine (like Google, Yahoo, or Bing) receives a similar notice alleging that its search results include references and links to a website containing infringing material, there is a very strong incentive for the web host to immediately take down or disable access to the webpage containing the infringing material and for the search engine to immediately take down or disable access to any references or links to the infringing webpage in its search results.  If the service provider fails to do so, it runs the risk of losing its statutory immunity from secondary liability for the copyright infringement of the person who actually placed the infringing material on the Internet.

    Sending a DMCA takedown notice, however, does not always result in a permanent removal of infringing material from the Internet.  To prevent spurious use of the DMCA takedown notice process, the DMCA requires a service provider who receives and acts on a DMCA takedown notice to promptly notify the owner of the website containing the allegedly infringing material that it has removed or disabled access to that material in response to the service provider’s receipt of a DMCA takedown notice.  The website owner may then send the service provider a counter notification stating, under penalty of perjury, that the website owner “has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.”  17 U.S.C. 512(g).  If such a counter notification is received by the service provider, the service provider must repost or restore access to the removed material within 10-14 business days after receiving the counter notification, unless the party who submitted the DMCA takedown notice first provides the service provider with notice that he or she has filed a lawsuit seeking a court order to restrain the website owner from engaging in infringing activity.

    Although it may not permanently remedy someone else’s online infringement of a business’s or an individual’s copyright, a DMCA takedown notice is a powerful tool in the hands of businesses and individuals who want to protect their original works that are entitled to copyright protection from being copied or adapted online by others without the business’s or individual’s permission.  The attorneys at Smith LC are equipped with the knowledge and experience necessary to assist businesses and individuals in understanding and using the DMCA takedown notice process to properly protect their copyrightable works from online infringement.  We also assist businesses and individuals whose online material is improperly removed or disable as the result of a frivolous DMCA takedown notice.  Please contact us to learn more about how we can assist you.

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