Internet Copyright Infringement

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Internet Copyright Infringement

Internet copyright infringement is increasing on a daily basis. Whether you’re a writer, musician, artist or other creator of original works, the internet has created a new platform for infringers to violate your exclusive rights.

What is Internet Copyright Infringement?

Once a creative work is fixed in a tangible form – which includes pages on the internet – that work has secured copyright protection. This grants exclusive rights to the creator to reproduce, distribute, publicly display, and control derivative works of the creation. When these or other rights are violated on the web, internet copyright infringement has occurred.

There is no real distinction between traditional forms of copyright infringement and violations that occur online. Both violate copyright laws and open the infringer up to potential copyright litigation. The internet did create a few novel situations, however, that weren’t common prior to widespread connectivity.

The following are examples of internet copyright infringement:

  • Posting an original photograph of a painting displayed in a museum.
  • Downloading a novel from a fan site online without written permission.
  • Posting a YouTube video with unlicensed music playing in the background.
  • Watching a film online from an unlicensed website.
  • Posting another person’s photograph on your personal blog.

Each of these instances of internet copyright infringement could have been avoided by first getting permission to engage in the activity. This permission must come from the original creator or the party they transferred their exclusive rights to (e.g. book publisher). Simply paying for the ability to enjoy a copyrighted work yourself does not grant any additional rights like posting it online.

While creative works secure some protections the moment they are produced in tangible form, this typically isn’t enough to fully enforce exclusive rights. Creators cannot file a lawsuit to protect their works without first getting a copyright registration from the U.S. Copyright Office. In addition to a lack of enforceability, the following benefits of federal registeration will also be missing:

  • Infringement deterrence: Registration of a copyrighted work creates a public record of protection. This makes it difficult for infringers to plea ignorance, so proper registration serves as a deterrent.
  • Prima facie evidence: If a creator goes to court to protect their rights, being federally registered serves as presumptive evidence of their ownership of the work.
  • Additional compensation: Registration allows creators to seek statutory damages, attorneys’ fees, and court costs.
  • Border protection: Once a work is registered with the U.S. Copyright Office, creators can seek additional protection from the S. Customs and Border Protection (CBP). This can prevent infringing materials from being imported.

These protections are essential due to the widespread and increasing issues of internet copyright infringement. This problem is at least partially attributable to the inaccurate belief that public access equates to public domain. The American Bar Association listed this as one of the biggest myths of copyright law. Just because a work is available online doesn’t mean anyone can use it.  Widespread copyright infringement online doesn’t mean that you are safe if you also infringe.

Detecting Internet Copyright Infringement

While the internet undoubtedly made it easier for infringers to violate the rights of creators, it also serves as a powerful tool in detecting instances of infringement. Even after registering with the U.S. Copyright Office, copyright owners must still be vigilant about detecting violations of their rights. The government doesn’t monitor this, so the onus of policing misuse is on the creator.

While hiring a professional to monitor potential violations is ideal, there are also ways that creators can fight against internet copyright infringement on their own. Consider engaging in the following strategies until you can get professional help with identifying misuse:

  • Google Text Search: Google is constantly updating its database when new content is posted online. This means the creators of literary works – which make up more than 45 percent of all registrations – have an invaluable tool to identify potential infringement. You can seek out specific text from your work via their search option. Literary creators can also set up Google Alerts so they’re not constantly having to check the site.
  • Google Image Search: Google also indexes images uploaded across the web. Photographers, painters and other visual creators can visit the Google Image page and search for misuse of their work by uploading pictures of their copyrighted material. This overcomes the inability of a text search to identify infringement of visual works. This invaluable tool will find anywhere your work is posted publicly online.
  • Software tools: Internet copyright infringement doesn’t require violators to misuse works in their entirety. Publishing a chapter from a book, for instance, would still violate the owner’s exclusive rights. It can be difficult to track down this type of use, though, without searching for every unique phrase in the book. Fortunately, tools like Copyscape will search for online copies of any portion of your work.
  • Third-party research: Digital tools for identifying copyright infringement online are imperfect. They will typically have difficulty spotting derivative works – such as “spinning” literary works or uploading photographs of copyrighted material – which are still considered infringing. This makes it ideal to utilize third-party professionals to cover these blind spots.

Monitoring for instances of copyright infringement online is necessary for protecting your rights.  The annual cost of internet copyright infringement is about $50 billion per year. This is a constantly growing threat, so creators must remain vigilant in identifying and responding to inappropriate use of their works.

Copyright Cease and Desist Letter

When you detect online violations of your creative works, your first step will typically be to send a copyright cease and desist letter. This lets infringers know that you’re serious about protecting your rights, but it also serves as an evidentiary trail if the violation continues. An infringer cannot later claim ignorance during copyright litigation if they continued infringing after a cease and desist letter.

Sending a copyright cease and desist letter doesn’t guarantee that infringement will end. The alleged infringer may feel they’re within their rights to use your work (e.g. “fair use”), or they may simply not believe you’re serious about potential litigation.  That is why we suggest that you don’t just have a copyright attorney send the letter.  We recommend that you have a copyright attorney that litigates send the letter.  This will come with the clear threat that litigation will ensue if they do not comply with your demand.

It’s feasible that you can come to an agreement – such as receiving a settlement payment – with a party that has infringed upon your rights. If this isn’t possible, though, there are a few other options for responding to internet copyright infringement.

DMCA Notices

In order to protect websites and others who may indirectly and unknowingly contribute to internet copyright infringement, the Digital Millennium Copyright Act of 1998 was passed. This removed liability from website hosting companies and other parties if they took active measures to respond to and remove material that infringed upon the rights of others.

It’s not necessary to send a cease and desist letter to an infringer prior to sending a DMCA takedown notice. Taking both steps, however, can help to get a prompt resolution. Google alone handles around 2 million takedown notices daily, so asserting rights under the DMCA is one of the most frequently utilized responses to infringement.

You can utilize the following steps to submit a DMCA takedown notice:

  • Collect evidence: Compiling a list of infringing webpages along with screenshots of misuse is necessary to have content removed.
  • Find the recipient: There are many third parties that can have content removed – ranging from search engines to website hosts – so determine the best recipient(s) for the takedown notice.
  • Find the copyright agent: Most organizations have specific individuals who handle DMCA takedown notices. Find the contact information of this person or the page devoted to submitting the notices.
  • Draft your takedown notice: This is where you’ll present all pertinent information.

In most cases, submitting a DMCA takedown notice will result in content being removed. This is because large organizations prefer to play it safe when the potential exists that they’ll face liability. Alleged infringers can submit a response such as a counter-notice, and if the copyright owner fails to answer, the content may be restored within 10-14 days.

By filing a counter notice, though, third parties leave only litigation as a recourse for internet copyright infringement. The owner of the creation in question must submit proof of a pending lawsuit to prevent offending content from being reposted online.

Copyright Injunction

Once a lawsuit is filed related to internet copyright infringement, the complainant can seek a copyright injunction from the courts. If granted, the court will order that all alleged infringing activities cease immediately. This has the potential for ending legitimate commercial actions if the defendant isn’t actually infringing, so the complaining party must typically post a bond before the injunction is granted.

These orders are important due to the possibility of loss by the rightful owner of a creation. Litigation related to copyright infringement has the ability to drag on for a long time. If the court believes the potential for loss by the rightful owner is high, they will grant the injunction to prevent further loss. A temporary restraining order (TRO) may also be issued in urgent circumstances.

Once a trial concludes, the court can issue a permanent injunction. This prevents the infringer from ever again misusing the infringing content. This injunction will be enforceable nationwide. Failing to abide by the order will be contempt of court.

Copyright Litigation

Before a temporary restraining order or preliminary injunction is granted, the rightful owner must first file copyright litigation. This is appropriate when infringers are not ceasing their behavior or if the damage caused by misuse is so great that only financial compensation will make the owner whole. You must first file a copyright application with the U.S. Copyright Office before any litigation can occur.

File sharing cases – which always involve online infringement – usually make up 20-30 percent of copyright lawsuits. During some periods, though, they’ve outpaced all other forms of copyright infringement. There are also many instances where online misuse doesn’t involve file sharing.

If a complainant is successful in their lawsuit, they may be awarded the actual damages suffered. Unfortunately, these can sometimes be difficult to prove. This makes statutory damages the most common result. In situations where willful infringement cannot be proven, awards can range up to $30,000. If willful intent is proven, though, this can climb up to $150,000 per infringing act.

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If you are dealing with internet copyright infringement and need assistance or having any questions, please contact today.

 

 

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