You've most likely spent a significant amount of money and time putting together the perfect website. It's filled with just the right content, and you are well-pleased.
Yet, you may not be aware that competitors (and others who just think your content is cool) might be taking your content and using it unaltered as their own. If your company is like many others, then you also may not have a system to monitor for possible instances of copyright infringement.
It's a fair bet you don't know what to do, even if you should discover a case where someone has swiped your content and passed it off as theirs.
However, every company that has a website should work to protect its online assets from copyright violations. Safeguarding your brand is essential, so spotting copyright infringement issues and resolving them as soon as possible is a necessity.
The U.S. Copyright Office defines copyright infringement as follows:
"As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner."
Below, we'll take a look at the fundamentals of protecting your website from copyright violations and clue you in to some tips, tricks, and best practices for infringement prevention.
Before you can know whether you or someone else is engaging in a copyright violation, you need to understand what it is.
The Merriam-Webster dictionary defines copyright like this:
"The exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (such as a literary, musical, or artistic work)
E.g., "His family still holds the copyright to his songs."
According to the U.S. government:
"Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works."
A common fallacy is the notion that someone must place a copyright symbol ( © ) on whatever it is they want to copyright or that they must register it with the U.S. Copyright Office. The truth is that your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
In other words, all created content online is owned by its respective creator and is protected by copyright. Therefore, you cannot use that content on your own website unless you've obtained approval and licensing from the content creator.
One of the first rules you should abide by is assuming that any content which you may come across online and which you didn't create is protected by trademark law or copyright. It's possible that it's not, but you should always assume that it is unless there's documentation proving otherwise.
In other words, don't use content you didn't create or that you don't have specific, written permission to use.
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A popular assumption is that works on the internet or that lack a copyright notice are public domain. However, that's not the case. (Note that public domain encompasses creative works to which no exclusive intellectual property rights apply.)
What should you do if someone claims that you're using their materials?
Of course, there are people who make false claims. However, during the time you investigate a claim of copyright infringement, you should protect your website by removing the offending material.
If you find that you must go to court, ensuring that you were proactive and that you stopped using the material in question could go a long way toward keeping you from being held liable.
On the flip side, if you continue using materials that cause you to violate someone's copyright, the damages you might have to pay will be much greater than if you'd removed the offending material right away.
Moreover, the 1998 Digital Millennium Copyright Act (DMCA) notes that business owners can mitigate or avoid liability entirely if they promptly remove infringing material.
There is a lot of material out on the Web, including shareware, freeware, and clip art that you might be tempted to believe is yours to take and distribute or copy without obtaining a license.
After all, it might be labeled:
However, that's not always the case. At least one company was found liable for not honoring terms hidden in a click-wrap agreement, which forbade the distribution of three software clip art volumes.
Always investigate a claim of copyright infringement as soon as possible. Do not delay.
Specific issues to investigate are:
Your webmaster may be able to verify whether the person making a claim is being truthful or not by checking facts through this type of copyright research.
You should also be able to determine who put the offending material on your site and when.
After conducting your initial investigation into the infringement claim, you should send a letter in response to the infringement claim. You'll send this letter either to the person claiming copyright or to their attorney.
As noted above, it is recommended that you consult your own lawyer about the best way to respond. Remember that not all situations are the same. You'll therefore want to be able to respond in the manner that is suited best for the circumstances surrounding the particular claim against you.
Many people still choose to respond without consulting an attorney. If you choose to do so, there are a couple of things to remember:
There are a few things that you don't want to leave out of your letter. Address the following things to ensure your letter is as professional as possible:
Stanford University provides a sample letter that should give you a good idea of the sort of thing to put in your own response letter to an infringement claim:
Once the claimant receives your response, they must consider it before they choose to take further action.
Even if they don't buy your argument or denial of copyright infringement, they are still expected to lay out their reasons in a follow-up letter to you before heading to court. If they do not do this, they could be penalized by the court themselves.
You may or may not ever hear from the claimant ever again after sending your response to their infringement claim. It's possible that you will hear more when you learn you're being taken to court. Be aware that while the claimant has the right to take you to court, they do not have the right to harass you or pressure you for money.
Additionally once in court, the onus will be on the claimant to prove their claim against you.
Remember that if someone makes an infringement claim against you and it ends up in court, they will have to prove the following:
Should you find that you must defend yourself against a claim of copyright violation, there are three common defenses which you have available to you. These include:
The rule of thumb is that if you didn't create a particular piece of content, you must always seek permission to use it on your website. Whether that includes purchasing a license or signing an agreement, you need to ensure that you're legally covered.
Remember that obtaining written evidence of that permission is essential. While oral consent is considered valid, it is also hard to prove.
To this point, we've talked about keeping your website free of copyright violations. However, what happens if someone uses content you've created without obtaining permission?
In a case like this, you need to decide whether you want the offender only to take the unauthorized material offline or if your business has been harmed if you want to pursue damages (or both).
If you haven't copyrighted your website, you should do so through the U.S. Copyright Office. Save all your documentation.
You need evidence if you choose to pursue a claim in court. To collect this evidence:
Finally, once you've collected your evidence, you need to send the offending party a cease and desist letter. Ideally, it would be best if you had your attorney do this.
If you choose to write this letter yourself, then you must ensure that you do not threaten the offending party with anything other than legal action. Additionally, it would be best if you didn't threaten legal action unless you are actually prepared to take it.
Your letter should include the following:
Be sure that you've collected evidence against the infringer before sending the Cease and Desist letter. If you fail to do this, the offending party could change elements of their site, which could make proving your case in court much harder.
This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
03 September 2021