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Copyright Infringement

Copyright Infringement aka “Piracy”

Copyright infringement (also known as “piracy”) occurs when you use or distribute information without permission from the person or organization that owns the legal rights to the information, usually for the purpose of distribution and profit. Copyright owners are concerned with infringement because if potential customers can buy copies of the copyright work for less or obtain it for free, then potential customers and profits are lost (because the potential customers purchased it for less or obtained it for free).

If you are accused of piracy, then someone is claiming that you have unlawfully copied part or all of their work. Computer software, video games, photographs, web pages, music and DVDs are common objects of copyright infringement actions. For example, including an image or cartoon on your web site or in a document, illegally downloading music, and pirating software are all common copyright violations. While these activities may seem harmless, they could have serious legal and security implications.

Copyright Registration Protects Web Sites

The entire contents of a web site no more require multiple registrations than a book with many chapters and numerous illustrations — or a CD with text and music, still and animated graphics, and software. Copyright Office Circular 66 contains a brief discussion of copyright protection for web sites. However, the following statement in Circular 66 often misleads those unfamiliar with copyright, including web site developers:

Revisions and updates

  • Many works transmitted online are revised or updated frequently. For individual works, however, there is no blanket registration available to cover revisions published on multiple dates. A revised version for each daily revision may be registered separately…. A separate application and filing fee would be required for each….

While new text isn’t covered by prior registrations, a court would likely not allow someone to get away with copying a web page of mostly registered content merely because it contains a few new sentences or other changes. And for those of you who make a lot of money with a web-based business, it is worth updating your copyright registration of web site content on a regular basis. Typically, I recommend that my web-based businesses update its copyright protection at least once a year at the same time that the business renews its business license or pays taxes.

Copyright Registration Protects Email

Similar to a literary work of authorship, copyright protection governs an original work of authorship fixed in an electronic message, such as email and text messages. Notice on individual messages may be useful, but are not necessary. And, if you wanted to include notice, then something as simple as “please do not forward this message without permission” should be adequate.

Copyright Might Apply to Links and Frames – Infringement Considerations

Links and frames present problems that seem unique to the Internet.

First, if one directly links to content that would normally be framed elsewhere, its owners are apt to object. There is little law directly on point because the few parties involved in such disputes have settled. Still, if a linking page surrounds other’s material with its own ads, cuts out another’s ads or makes it appear that the linking site is the source of the linked material, trouble is likely. It is difficult to argue that otherwise implied permission to link could be reasonably expected under such circumstances.

Second, consider situations where linked material infringes another’s copyright. Ordinarily, a copyright holder would act only against the directly infringing page; others would be unaware of the dispute. However, where direct infringers are, say, beyond the reach of local courts, and particularly where a site owner actively encourages use of an offending page, there is a solid basis for protest. Unless copyright infringement has been actively encouraged, however, prompt removal of offending links should minimize risk of suit.

Third, while most web owners would complain about copying, some may complain about linking when it burdens their servers or, in the case of images, because it does not credit them. If that information is not posted, it is best to ask the owner. Still, no one should copy, even from sites that urge it without considering whether site owners hold copyright.

Consequences of Downloading Potential Copyrighted Content from the Internet

  • Prosecution – When you illegally download, reproduce, or distribute information, you risk legal action. Penalties may range from warnings and mandatory removal of all references to costly fines. Depending on the severity of the crime, jail time may also be a possibility. To offset their own court costs and the money they feel they lose because of pirated software, vendors may increase the prices of their products.
  • Infection – Attackers could take advantage of sites or networks that offer unauthorized downloads (music, movies, software, etc.) by including code into the files that would infect your computer once it was installed (see Understanding Hidden Threats: Corrupted Software Files and Understanding Hidden Threats: Rootkits and Botnets for more information). Because you wouldn’t know the source or identity of the infection (or maybe that it was even there), you might not be able to easily identify or remove it. Pirated software with hidden Trojan horses is often advertised as discounted software in spam email messages (see Why is Cyber Security a Problem? and Reducing Spam for more information).

Terms of Use (TOU) May Grant Limited Permission to Use Web Site Content

If someone can download songs, games or other material that may be copyrighted from a web site, then the web site owner might be accused of piracy. If a web site enables users to trade copyrighted material, or if a web site provides tools that allow others to crack the codes protecting copyrighted material, then the web site(s) could be accused of assisting in piracy or in “contributory copyright infringement.” Regardless of whether the copied materials are offered for sale, distributed for free, or given to friends, the copyright owner may claim infringement.

If you find something on a web site that you’d like to use (e.g., a document, a chart, an application), search for information about permissions to use, download, redistribute, or reproduce. Most web sites have a Terms of Use (TOU) page that explains how you are allowed to use information from the web site. You can often find a link to this page in the site’s contact information or privacy policy, or at the bottom of the page that contains the information you are interested in using.

There may be restrictions based on the purpose, method, and audience. You may also have to adhere to specific conditions about how much information you are allowed to use or how the information is presented and attributed. If you can’t locate the terms of use, or if it seems unclear, contact the individual or organization that holds the copyright to ask permission.

Stopping the Pirates

Most of the time, the copyright owner just wants to stop the pirates from stealing – that is, stop the infringement. But how?

If the copyright owner is willing to enforce copyright protection, which often involves paying an attorney, then stopping the infringement in the United States is relatively easy and can likely be accomplished with a cease and desist letter to the infringer and any contributory infringer. And, if the infringement occurs on the Internet in the United States, then sending a letter to a search engines that might link to the infringing site’s URL or to the Internet Service Provider hosting the infringing site’s URL will likely disable the infringing site’s URL. However, if the ISP hosting the web site or the infringer are located outside the United States, then stopping the infringement may not be possible or it may be very expensive to accomplish.

If the copyright owner also wants to obtain monetary damages, a temporary injunction, a permanent injunction and/or the seizure of the infringing material, then this may be more difficult because it requires filing a lawsuit in federal district court.

Registered Copyrights

If you suspect that somebody has infringed your copyright and you want the infringement to stop, then the first step is to confirm that you registered or have applied to register your copyright with the U.S. Copyright Office. You should also confirm the content that was submitted with the application for registration. U.S. copyright law requires that when a published work is registered, the application for registration must contain two deposits of the best available edition of the work.

And, if the copyright work is a web site, then the content of the deposit can be very important. That’s because the deposits for a web site registration can be either five representative pages of the web site or the entire web site (this is the preferred content to submit) in hard copies of each page or on a CD or some other electronic format. If the deposit was the entire content of web site on the date of the application, then there is a greater chance of matching the copyright content with the infringing content. If the deposit is less than the entire contents of the web site, and the infringing content is not contained in the deposit material, then the proof infringement is not as easy.

Advantage of Registered Copyrights

Attorneys’ fees and statutory damages are available remedies when the copyright work is registered before infringement. And, for web site infringement, registration is even more important because oftentimes it is difficult to prove substantial monetary damages when web site content is infringed. Statutory damages do not require a showing of lost profits or the infringer’s profits because the court has the discretion to award statutory damages of up to $30,000 to $150,000 (for intentional infringement) of each work infringed.

A copyright owner who does not file for registered copyright protection may not have the ability to obtain attorneys’ fees and statutory damages, and consequently, an unregistered copyright owner might end up spending more in attorneys’ fees and it might not be worth filing a lawsuit.

Unregistered Copyrights

If a copyright owner does not apply for copyright registration before the infringement, they the copyright owner may be limited to actual damages (i.e., lost profits and the infringer’s profits) and an injunction.

Cease & Desist Letter

The purposes of a cease and desist letter include the following:

  1. To notify the infringer of the copyright protected work(s).
  2. To demand that the infringer cease and desist infringement.
  3. To demand that the infringer pay lost profits and/or provide an accounting of all profits derived from the infringed work.
  4. To demand that the infringer pay for profits derived by the infringer from the work.
  5. To notify the infringer that the infringer may be liable for attorneys’ fees and statutory damages (only if you have a copyright registered before the infringement).
  6. To notify the infringer that you intend to send a notice of your claims to the ISP that hosts the infringing website as well as to search engines and demand that the ISP and search engines take down the infringing content.
  7. To provide a deadline for responding.

Possible Adverse Consequences of a Cease & Desist Letter

If a copyright owner sends a cease and desist letter to an infringer, there is a risk that the infringer may file a lawsuit in the infringer’s jurisdiction naming the copyright owner as a defendant and seeking a declaratory judgment that the copyright is invalid. There is a court decision that found the sending of a single cease and desist letter to the infringer was enough to subject the copyright owner to personal jurisdiction in that jurisdiction (another state).

Digital Millennium Copyright Act

Many web sites that have infringing material add a disclaimer stating that the site does not support copyright infringement.

The notice to the service provider of infringement must be given to the service provider’s designated agent and must contain the following information:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed.
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  6. A statement that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Filing a Copyright Infringement Lawsuit in Federal District Court

If the infringement does not stop or if the copyright owner can not reach a settlement with the infringer (usually when significant amounts of lost profits and profits earned by the infringer), the copyright owner can file a lawsuit in federal district court against the infringer and contributory infringers for copyright infringement. Oftentimes, this is the only way to obtain monetary relief from the infringer.

Although litigation is expensive, a copyright owner may win damages equal to lost profits plus profits derived by the infringer and an injunction prohibiting future infringement. For copyrights registered before the infringement, the court may award statutory damages up to $150,000 per intentional infringement. Subject to the approval of the court, copyright plaintiffs may also obtain: (i) a temporary restraining order that prohibits the infringer from infringing the copyrighted work, and (ii) a court order authorizing the U.S. marshal to seize the allegedly infringing material.

Last Modified: December 5th, 2009