Many of you reading this column are creators — writers, poets, photographers, painters, illustrators and the like. As a travel writer, I’m part of this cohort. When I recently discovered my intellectual property or “IP”— text and photos from my website Fijiguide.com, on another website, I was not pleased.
Unfortunately, this happens to a lot of people. So, what to do?
Of course, you could hire an attorney. However, as I found out from Ross Uehara-Tilton, who practices law at Damon Key Leong Kupchak Hastert, there are measures you can deploy before engaging a lawyer.
I spoke to him recently and he had some great advice for all you creators out there who find their IP ripped off.
Question: What can you do to stop someone who has taken and reposted content from your website?
Answer: The easiest way to start is by sending a “DMCA Takedown Notice” to the website host. It’s a powerful tool to put the brakes on the bad guys, and you don’t need an attorney.
Q: How does that work?
A: The Digital Millennium Copyright Act (DMCA) is a U.S. federal law that imposes liability for copyright infringement on the internet. It extends liability not only to the person responsible for posting the infringing content, but also potentially the technology providers that host the websites where the infringing content is republished. Because of that, they must pay attention to you.
Q: What’s involved with the DMCA process?
A: Essentially write a letter or fill out a form provided by the ISP with all the pertinent information and the URLs that illustrate the infringing activity. The ISP will respond. It’s not 100% foolproof but it will get the bad guy’s attention. Infringers with truly malicious intent can still get around this by hosting the infringing content on a DMCA-ignored server — usually one that is outside of the U.S.
Q: Any other methods you recommend?
A: Yes, a “cease and desist” letter to the infringer can be effective. It serves two basic functions. The first is to give notice of the infringement. Sometimes an infringer does not realize that they are publishing a copyrighted work, since it’s so easy to copy and paste the content. Second, a letter (particularly if sent by an attorney) can be a sort of scare tactic: take down the content or else …
Q: Is the easiest solution then to go the DMCA route?
A: I prefer a multi-faceted approach. The DMCA Takedown Notice and the cease and desist Letter serve different functions. The cease and desist letter can be easy to ignore but serves as a foundation in the case of future litigation, and the DMCA Takedown Notice potentially has a more practical result of causing a third party (the web host) to remove the infringing content.
Q: Will DMCA help you with someone who is cybersquatting?
A: First an explanation. Cybersquatting is a type of IP infringement that involves registering or using an internet domain name that is similar to an existing legitimate website owned by another, with the intent to profit off the goodwill of the legitimate website. With cybersquatting, the IP that is being infringed upon is usually a trade name, not a copyright. Thus, the DMCA protections and processes do not really apply to cybersquatting.
Q: So what do you do in that situation?
A: It’s more complicated than the DMCA takedown process, but there is a multinational agency called ICANN that helps to resolve these disputes. More information about the process is on their website ICANN.org, and in some cases there is a fee charged to resolve domain name disputes.
Q: At what point do you hire an IP attorney?
A: One benefit of hiring an attorney is to show the infringer the seriousness of the situation. There isn’t necessarily any magic language an attorney can write in a cease and desist Letter or DMCA Takedown Notice that a non-attorney could not write. The effect instead originates from the fact that the letter is coming from an attorney, and often contains a warning of possible further legal action if its contents are ignored.
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Rob Kay covers technology and sustainability and is the creator of fijiguide.com. Email him at Robertfredkay@gmail.com
