It just came to my attention earlier today that someone had copied an entire article from IPWatchdog.com and posted it to their own website last week. How is it possible that anyone doesn’t realize that you just cannot do that? More likely, it is known that you cannot do that but people do it figuring they won’t get caught. One of the most frequent questions I would get from my former law students was “how do you ever learn that someone is infringing” or “how would you ever know what someone it thinking?” For those areas of law where motive matters, luckily those who are malicious also tend to be rather stupid. While they don’t necessarily need to tell you they fired you because you are African American, female or disabled, so many people revel in their own bigotry (and stupidity) and just cannot help themselves. That is a special kind of hate, when you cut your nose off to spite your own face. In the intellectual property context it frequently isn’t as easy to spot infringement unless you are vigilant, search and survey what is out there at any given time.
Online copyright infringement is rampant, everyone knows that. But did you know that there is usually a very easy solution? If you are the owner of a copyright you can provide notice to the webhosting company that houses the infringing material, and they will almost always take action. The Digital Millennium Copyright Act provides protection from copyright infringement lawsuits for service providers. This protection manifests itself in immunity from being sued for infringement, but they must take reasonable and swift action to remedy an infringement once they are notified. Since they do not want to lose their immunity from copyright infringement, if you notify them of an ongoing infringement they will almost always order the website owner to take down the infringing material, or they will.
You must send this notice in writing to the webhosting company, which you can learn through a WHOIS lookup. You must provide at a minimum:
- A physical or electronic signature (i.e., /s/NAME) of a person authorized to act on behalf of the owner of the copyright that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed.
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner.
- 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 the copyright that is allegedly infringed.
What follows is a sample letter modeled off the one I sent earlier today, which you may use if you so choose. If you use this form you agree to the terms and conditions at the bottom of this page.
SAMPLE DMCA TAKE DOWN NOTICE
My name is INSERT NAME and I am the INSERT TITLE of INSERT COMPANY NAME. A website that your company hosts (according to WHOIS information) is infringing on at least one copyright owned by my company.
An article was copied onto your servers without permission. The original ARTICLE/PHOTO, to which we own the exclusive copyrights, can be found at:
PROVIDE WEBSITE URL
The unauthorized and infringing copy can be found at:
PROVIDE WEBSITE URL
This letter is official notification under Section 512(c) of the Digital Millennium Copyright Act (”DMCA”), and I seek the removal of the aforementioned infringing material from your servers. I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.
Please also be advised that law requires you, as a service provider, to remove or disable access to the infringing materials upon receiving this notice. Under US law a service provider, such as yourself, enjoys immunity from a copyright lawsuit provided that you act with deliberate speed to investigate and rectify ongoing copyright infringement. If service providers do not investigate and remove or disable the infringing material this immunity is lost. Therefore, in order for you to remain immune from a copyright infringement action you will need to investigate and ultimately remove or otherwise disable the infringing material from your servers with all due speed should the direct infringer, your client, not comply immediately.
I am providing this notice in good faith and with the reasonable belief that rights my company owns are being infringed. Under penalty of perjury I certify that the information contained in the notification is both true and accurate, and I have the authority to act on behalf of the owner of the copyright(s) involved.
Should you wish to discuss this with me please contact me directly.
City, State Zip
TERMS & CONDITIONS OF USE: While forms are commonly used and available elsewhere around the Internet it is important to understand the limitations provided by forms. A form, by its very nature, is previously written, usually to address a typical situation. Unfortunately, in law there are few typical situations. While this form will be useful for some, the use of a form should not be viewed as a replacement for competent legal advise adapted to your particular situation. IPWatchdog, Inc. and Gene Quinn personally accept no liability if you do use this or a modified version of this Agreement.- - - - - - - - - -
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Posted in: Business, Congress, Copyright, Gene Quinn, Internet, IP News
About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.