Has Your Content Been Stolen? A Lawyer’s Guide To Defending Your Online Content

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Has Your Content Been Stolen? A Lawyer’s Guide To Defending Your Online Content

As an attorney who has been advising websites, affiliates, and networks across the country for a decade, I know many Internet marketers see the law as an obstacle. What do I have to disclose? What am I allowed to say in an ad? How quickly do I have to respond to an email opt-out? And so on.

Fortunately, at least in one area, the law is on your side. If you create content, and someone steals it and posts it on another site without your permission, the law gives you certain rights. Knowing those rights is half the battle.

A Guide to the DMCA and Takedown Notices:  What They Mean and When to File One

The same scenario plays out over and over again as the demand for original content gets increasingly competitive. Let’s use a product review blog as an example.

The blogger buys or borrows a new lawnmower and tests it for two weeks to write a review. He takes pictures of the lawnmower, before and after photos showing the mower’s performance, and then writes a detailed article explaining how the mower is a great buy. He posts the photos and review to his website and the traffic starts flowing in.

After a week, the traffic drops off dramatically. He performs a search to see where his blog is ranked and notices a similar article ranked above his. He clicks on it to see that a lawn care blog copied his entire article and posted it on their site.

Fortunately, our blogger knows his rights under the Digital Millennium Copyright Act, commonly known as the DMCA.

How to Make Use of the DMCA

You have a copyright on the original, creative content that you create (think articles, photos, songs, etc…). For example, as soon as you take a picture, you own the copyright in that picture. Except for certain exceptions, like a limited right of “fair use,” you have the right to control who makes copies and publishes your content.

The DMCA is a federal law that gives content creators a formal process to enforce their rights and protect their content. The process for demanding removal of your content is informally known as a takedown notice. While this procedure technically only applies to those websites that have voluntarily registered under the DMCA, sending the notice is generally the most effective way to protect your content and make them remove the infringing copy.

Most websites that have registered under the DMCA provide their DMCA policy in their terms of service, often located through a link at the bottom of the website. They will designate an agent to receive takedown notices. If they don’t provide you the agent’s name, you can find it on the U.S. Copyright Office’s website. If they are not registered, then you may have to dig to find the best contact to receive your notice.

In order to invoke the DMCA and formally request the website owner remove the infringing copy of your content, you must send a written statement to the website’s DMCA agent that contains the following:

  1. Identification of your original work that you claim has been infringed.
  2. Identification of the material you claim is infringing and needs to be removed, including a description of where it is located.
  3. Your address, telephone number, and, if available, e-mail address, so the copyright agent may contact you about your complaint.
  4. A statement that the above information is accurate.
  5. A statement that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law.
  6. A statement, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf in this situation
  7. Your physical or electronic signature.

Once you send the takedown notice to the website’s DMCA agent, the website must quickly remove the infringing material you identified.

However, this is not always the end of the road. The website has a duty to notify the person who posted your infringing content to let them know that you have filed a takedown notice and the content has been removed. The person then has an opportunity to send a counter notice showing they did not violate your rights.

They rarely send a counter notice, but if they do, you may need to file a lawsuit to prevent the website from putting the content back up. You should also be aware that knowingly submitting a false takedown notice can result in you being liable for the website and poster’s attorney fees and any damages incurred as a result of your false request.

So, let’s go back to our lawnmower blog. The original blogger finds out about the infringing blog and wants to send a takedown notice. He knows the requirements for the takedown notice, but he is not sure of a good way to put the notice together.

Writing your own DMCA Notice, Made Easy(ier)

Here is a sample template that is a good starting point for a takedown notice. Please note that this is just a sample, is only for informational purposes, and is not a substitute for legal advice about your particular situation.

Dear (DMCA Agent):

I am an authorized representative for (name of company, or your name). I am contacting you pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c), and formally demanding that you remove and disable access to infringing content located on your website.

(I am, or the company is) the creator of certain (generally describe the type of content). You can see the relevant content at (your website). As the creator of this content, (you or your company) owns the exclusive rights to the content under the United States Copyright Act of 1976. This content is being infringed on by your website, (website address for their website).

(My or my company’s) copyrighted content appears on your website at (specific page of the infringing content). I am enclosing a screenshot captured on (date) from (specific page of the infringing content).

(I or my company) have/has not authorized any person or entity to copy or publish this content on your website. By displaying (my or my company’s) content without my/its permission, your website is infringing (my or my company’s) copyright.

I have a good faith belief that the use of (my or my company’s) content on your website is not authorized by the copyright owner, its agent, or the law. The information contained in this letter is accurate, and under penalty of perjury, I am authorized to act on behalf of the owner of the exclusive copyright in the infringed content.

You may contact me at (mailing address, telephone number, and email address).

I hereby demand (name of infringing website) immediately remove from its website and disable access to the copyrighted content referenced in this letter by no later than (date seven days from date of the letter).

Please confirm in writing that you have received this communication and describe the actions you have taken in response to this letter.

Respectfully,

(Your signature)

To put this letter in more context, let’s use our lawnmower example again.

Dear (DMCA Agent):

I am an authorized representative for Amazing Product Review Blog, Inc. (“APRB”). I am contacting you pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c), and formally demanding that you remove and disable access to infringing content located on your website.

APRB is the creator of a certain blog article and photographs. You can see the relevant content at AmazingProductReviewBlog.com/Lawnmower.html. As the creator of this content, APRB owns the exclusive rights to the content under the United States Copyright Act of 1976. This content is being infringed on by your website, EvilLawnCareBlog.com.

APRB’s copyrighted content appears on your website at EvilLawnCareBlog.com/lawnmower. I am enclosing a screenshot captured on September 1, 2014 from EvilLawnCareBlog.com/lawnmower.

APRB has not authorized any person or entity to copy or publish this content on your website. By displaying APRB’s content without its permission, your website is infringing APRB’s copyright.

I have a good faith belief that the use of APRB’s content on your website is not authorized by the copyright owner, its agent, or the law. The information contained in this letter is accurate, and under penalty of perjury, I am authorized to act on behalf of the owner of the exclusive copyright in the infringed content.

You may contact me at (mailing address, telephone number, and email address).

I hereby demand EvilLawnCareBlog.com immediately remove from its website and disable access to the copyrighted content referenced in this letter by no later than September 8, 2014.

Please confirm in writing that you have received this communication and describe the actions you have taken in response to this letter.

Respectfully,

(Your signature)

Once again, while this letter may serve as an example, it is always a good idea to tailor your letter to your particular situation.

The Bottom Line

As a final note, you should be aware that some larger sites have alternative methods for requesting infringing content to be removed. They may have special forms you can submit electronically requesting that they remove your content. This is often the fastest and most efficient way to get your content removed. However, if they never remove the content, you can always send the formal takedown notice under the DMCA.

The bottom line is this: When you create content, you generally control who can and cannot re-post your content. If someone is re-posting your content without your permission, you can send a DMCA takedown notice to require them to take down your content.

While sending a DMCA takedown notice is not a guarantee that they will remove your content, it is often the quickest and most cost-effective way to do so. Unless the website wants to risk being liable for copyright infringement, they should comply with your request and comply with the DMCA.

 

This article is provided for information purposes only and is not legal advice. Always consult an attorney for legal advice about your particular situation.

Image Credits

Featured Image: Mega Pixel via Shutterstock
Post Image: alexskopje via Shutterstock

Troy Meyerson
Troy helps networks, advertisers, publishers, online businesses and other Internet entrepreneurs navigate the complex and ever changing laws and regulations that impact e-commerce businesses. Among... Read Full Bio
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