Navigating the Rough Waters of Online Theft

This post originally appeared on OPEN Forum, an online community providing small business owners with information and advice to help them do more business. Cloudigy Law’s very own Kandis Koustenis was interviewed by Erika Napoletano.

Online content theft is rampant, which is why it’s important to know some of the ins and outs of digital copyright infringement.

Whoa, boy. It happened: Someone ripped you off. Stole your stuff lock, stock and barrel. Maybe they even had the audacity to tweak it a bit, hoping you wouldn’t recognize it.But you found out, and now you’re mad. And for good reason: It’s yours, and you should be fierce about defending what you create.

Erika Napoletano
Erika Napoletano

Last month, we talked about how to share things you find on the Internet without being a thief. We also discussed the basics of online copyrights. But this month, we’re talking to the content creators. How might you deal with a content thief and get the resolution you deserve when you find someone’s swiped your stuff?

I asked Kandis Koustenis, an intellectual property attorney with Cloudigy Law, to weigh in on the nitty-gritty behind potential remedies for your stolen digital stuff. Here are four of the more common scenarios she’s seen and some of her suggestions for possible responses.

Gah! Someone Stole My Stuff. What Should I Do First?

First things first: Breathe. You’re probably beyond riled up, but now is not the time to lose your cool. Step one is for you to attempt to reach out to the offending site and the site’s owners. There are a few ways you can do this:

  • Through the site’s contact page
  • Through the site’s social media presences (Facebook, LinkedIn and Twitter brand pages)
  • Through your network. Reach out and ask for people who might know the brand and can put you in touch.

If you actually happen to know the person who’s ripped you off, you can immediately drop them an email detailing your concerns. Give them 48 to 72 hours to respond before escalating to the next step.

Ugh! The Site Isn’t Responding or I Can’t Find Their Contact Information. What Do I Do Now?

Your next potential form of recourse is called a DMCA (Digital Millennium Copyright Act) Takedown Notice. You could send the notice, which can only be submitted by the copyright holder, to the ISP/hosting company of the website posting the stolen content. (The Copyright Alliance offers a fantastic quick guide to DMCA Takedown Notices.)

To easily locate the host of any website, use the WhoIs Lookup tool. It’s a completely free service. From there, you may visit the hosting company’s website and get your DMCA Takedown Notice process going.

Many hosting providers have built-in pages for copyright holders like you looking to protect their content. (You can see GoDaddy’s here and Name.com’s here.) To help you locate it, check the footer of the hosting company’s website for abuse/copyright/trademark policy pages.

If you decide to take this route, you’ll need to include specific information in your DMCA Takedown Notice. You can view a sample DMCA Takedown Notice letter here with all the necessary information included.

Before you file a notice, however, keep a few things in mind, my copyright-offended friend:

  1. This is serious business. Your notice could cause someone’s website to be completely shut down.
  2. Don’t take this lightly. Providing false information is a crime, and you could be sued if you make a frivolous claim.
  3. A Takedown Notice is sometimes a total remedy. But sometimes, it’s not. We’ll get into that below.

“Copyright owners should know that filing false DMCA Takedown Notices could leave them liable for damages and attorneys’ fees incurred by the alleged infringer,” Koustenis says. “Think before you file, and make sure you have a good faith copyright claim on your hands.”

Hosting companies are generally very attentive to Takedown Notices as they want to keep their names clean and their reputations on the up and up. I’ve filed multiple DMCA claims in the past, and all have been resolved fully within 72 hours.

When you send a DMCA claim, the hosting provider will send a notice to the website owner. If the owner fails to respond, the offending material will be removed in a (fairly quick) timeframe determined by the hosting provider. However, the site owner can counter your claim. Should that happen, this could be a potential course of actionf.

Wait! When Should I Consider Legal Action Against a Digital Thief?

Before you decide to proceed with suing someone, remember, lawsuits are expensive. As the copyright owner, you have to decide if it’s worth it to pursue legal action against someone who stole your stuff.
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“Practically speaking, you should do a cost/benefit analysis to determine whether the harm to your business or reputation is worth the cost and time expenditure of litigation,” Koustenis says. “And it helps if you think first about how you can articulate your damages—what you’ve lost as a result of your copyright being infringed upon.” For example, if you have a photo you license for $600 and your content thief has made that image available for free, you have potential damages of at least $600.

Whenever you’re considering taking legal action, reach out to a qualified attorney who specializes in intellectual property and copyright law. Their intimate knowledge of the nuances of this area of law can help you determine whether it’s worth the time, effort and expense to pursue formal legal action.

You may also run into an instance where you and the provider in question receive a counter notice to your DMCA Takedown Notice. If this happens, a DMCA Takedown Notice will only suppress the content taken down for a maximum of 14 days, unless you file a formal lawsuit. Again, speak with an attorney and get your legal ducks in a row. You’ve done the hard work of creating your work, and it’s perfectly reasonable to want to defend it. Legal counsel will help you do so with the full support of the law backing you up.

OK, Great. But Are There Ways to Police My Content Against Digital Theft?

Actually, there are plenty. One possible way is Copysentry. For less than $5 per month, you can protect an average-sized website (10 pages or less) from plagiarism and content theft. Copysentry will crawl the Web and send you alerts if it finds that another site might be copying your text-based work.

“Keep in mind that these are algorithms,” Koustenis says. “Just because you get a notice of a potential violation doesn’t mean there is one. It’s up to a content creator to look at the notice, review the potentially offending material and apply common sense before taking any action.”

If you’re wondering if someone’s copied a particular piece of your digital work, you can use Copyscape to find out. You drop in the URL of your copyrighted material, and Copyscape will crawl the Web and find any pages that meet a “substantial similarity” rule. You can then review the flagged pages (if there are any) and see if you want to take action.

Creators of visual content (infographics, photographs, videos, etc.) should consider visual watermarking on shared images. Watermarks should be placed in an area where they can’t be easily cropped out.

So there you have it: some tips on how to (smartly) navigate the situation when someone’s ripped you off. Oh, and one last thing: I’d like to suggest you add a hint of compassion, especially when you initially reach out to the site that seems to have stolen from you. Some people are just clueless about the rules of the digital copyright road. How cool would you be if you helped them learn and were kind in the process?

Of course, if you encounter someone who knew exactly what they were doing and won’t be reasoned with, that’s when the use of a savvy attorney comes in handy.

Go forth, create, and protect your work.

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