Stop, Thief! How to Protect Your Site from Copyright Infringement

They say that “Imitation is the sincerest form of flattery.” Not if you are a Web site owner and you have a brand to protect, however!

I’ve seen designs copied, content copied, even entire sites copied. It’s so easy for infringers to “View Source” and take whatever they like, without regard to copyright.

You can locate copyright infringers pretty easily with Copyscape if they’ve lifted some of your page copy. It’s much more difficult if they’ve limited their sticky fingers to just your design.

So far I’ve discovered by tip-off or by chance that our Netconcepts.com site design has been “pinched” multiple times. Eventually, many months later, the infringers finally stopped using our design, but the evidence of their misbehavior is permanently archived in the Wayback Machine (example 1 and 2).

In fact, the Wayback Machine is quite useful in that it can serve as indisputable proof of who is the source and who is the copy: Whichever site shows the design in use before the other is the source.

The way I see it, you have five options for dealing with an infringer:

1. File a DMCA infringement notification.
2. Contact the infringing company’s CEO.
3. “Out” them on your blog.
4. Have your lawyer send them a nastygram.
5. Do nothing.

If you do nothing, eventually the infringer will redesign (probably stealing another design from somewhere else). That’s not a great option if you’re serious about protecting your intellectual property rights, however.

A phone call to the CEO is inexpensive and it can work. It has worked for us in the past: he asked for two months to redesign, which we’ve granted him. But this isn’t a viable option if you’re dealing with an entity that operates overseas and has masked its domain contact information.

Luckily, the DMCA, or Digital Millennium Copyright Act, provides a useful hammer to beat on copyright infringers without the need to contact them. That hammer is a DMCA infringement notification. In DMCA legalspeak, this notification is also known as a “Takedown Notice.”

As a content producer, you have the right to enforce your copyright. When your content gets “repurposed” on others’ Web sites without your permission, you would simply file a DMCA Infringement Notification to the infringer’s Web hosting provider to get that infringer’s Web site shut down (like Ian McAnerin did recently).

You can also get the naughty infringer de-listed from the search engines by filing DMCA notices to Google and the other major engines. (I can hear you saying “Excellent!” in a Mr. Burns voice right now).

It is not a daunting procedure. It might take an hour of your time, and it is well worth it. The process is as follows:

1. First, look up the Web host and the domain registrar of the offending site, using lookup tools such as this one from Netcraft and this one from Domain Tools. You can usually ascertain who the Web host is from the Name Servers and/or the Netblock Owner.
2. Next, check the official directory of designated DMCA agents for the host and the registrar. (Hopefully, they’re listed.)
3. Then prepare a letter to send to the designated agent of the Web host. The notice you write should include your contact information, the name of the content that was copied, the Web address of the copied content, a statement that you have a good faith belief that the material is not legal, a statement that under penalty of perjury you are the copyright holder, and your signature. Some Web hosts will allow you to email your notice to them, making it all that more convenient.
4. Also be sure to send a similar notification to the search engines. That will cut off their air supply, in case the site doesn’t get taken down right away. Here are instructions and contact details for each engine: Google, Yahoo and Windows Live Search (formerly MSN Search). Note that Google requires you to mail or fax your letter, whereas Yahoo and Microsoft (Live Search) allow you to email your notification.
5. If the Web host doesn’t take the site down promptly, then submit a DMCA notice to the infringer’s domain registrar. Note: It might be worth sending a notice to the data center that the Web host uses before you try the registrar, as Dan Richard recommends.

Ian McAnerin posted some handy DMCA notification letter templates to make this process even easier: for the Web host, for Google, for Yahoo, and for Live Search.

I would be remiss to not mention that the DMCA takedown procedure is a double-edged sword. Like any other tool, a DMCA notice can be used for good or evil. Specifically, someone could use DMCA unfairly against you! It happens. Competitors do use the DMCA to silence competitors.

Therefore, you, as a Web site owner, need to protect yourself from unwarranted (or at least unwelcome) prosecution. If the potential exists for you to inadvertently host infringing material on your website—for example, if you are hosting online forums, group blogs, blog comments, or other types of content that can be submitted from others besides yourself—then here are some actions you can take to help protect yourself:

1. It’s helpful if you can qualify as a service provider that can be covered under the Safe Harbor provision. For example, you may qualify if you offer a search engine or a bulletin board system.
2. If so, notify your customers of your policies regarding copyright infringement and the consequences of repeated infringing activity. One way is to make it part of your Terms of Use.
3. Also, publish a page on your Web site with DMCA filing instructions and state that, if and when you get a DMCA notification, you will act on it. Here’s an example of such a DMCA Notification Instructions page.
4. And most important, check the directory of designated agents,; if your company isn’t listed there, complete and file this form (pdf) to the Copyright Office for inclusion in the directory.
   If you’re interested in the gory details of the DMCA, you can read this on Wikipedia.

Disclaimer: None of this is legal advice.

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