Cyber Pirates Stealing and Trafficing Online Treasures
Copyright © 2009 Bambi Faivre Walters, PC
Piracy or electronic copyright infringement occurs when someone else uses or distributes information without permission from the person or organization that owns the legal rights to the information. Throughout the years, the purpose of pirate attacks has remained the same – to steal something from others for profit, or sometimes, for braggin’ rights. The treasure today seems to be computer software, video games, photographs and other graphics, a web site or even just a portion of a web page, music, DVDS, eBooks and other electronic loot. And, today’s copyright owners have good cause to be concerned about potential customers trying to get a better deal or trying to obtain it for free – especially when the quality of the stolen electronic work is identical or near the same quality.
Aye Cap’n, if you are going to set sail with a web-based business or create other works easily disseminated on the Internet, then you need to keep in mind the dangers of technology raids, having your electronic works taken hostage and held for ransom, and, most important, what if, anything can be done to dismantle the pirate ship and how to fight back if you catch ‘em. Read on if you want to learn how to try to navigate and protect your electronic works in today’s web currents.
Stopping the Pirates
Most of the time, the copyright owner just wants to stop the pirates from stealing – that is, stop the infringement. If only it were that easy. Just like in the “Pirates of the Caribbean”, pirates can be hard to catch. Hard, but not impossible. So, how do you stop a Captain Hook and try to reclaim some of your lost loot? Well, to go pirate hunting, you often need a Peter Pan or a Tinker Bell. Translation, you hire an attorney who is used to dealing with the pirates and knows how the games are played.
If the copyright owner hires an attorney to enforce copyright protection, then stopping the infringement in the United States is relatively easy and can likely be accomplished with (1) a cease and desist letter to the infringer and any contributory infringer and the ship can be dismantled with (2) Digital Millennium Copyright Act (DMCA) letters to the major search engines to take down the infringer’s URL(s) and to the Internet Service Provider (ISP) hosting the infringing site to take down or disable the infringing site’s URL(s).
If, however, the ISP hosting the web site or the infringer is located outside the United States, then stopping the infringement may not be possible or it may be very expensive to accomplish because you have to hire a foreign attorney and likely file the lawsuit in the foreign country where the infringer resides.
And, if the copyright owner also wants to try to get back as much loot as possible – that is, to obtain monetary damages, a temporary injunction, a permanent injunction and/or the seizure of the infringing material – then this may be more difficult than just stopping the infringement because it requires filing a lawsuit in federal district court.
Cease & Desist Letter – a Civilized Demand to the Pirates
If you want to stop the infringement and take a “civilized” approach as well as a potentially cost effective approach, then have your attorney prepare a cease and desist letter. The purposes of the cease and desist letter include the following:
- To notify the infringer that you own the copyright protected work(s). Tell the pirates, it’s your gold and the marked coins prove the loot is yours.
- To demand that the infringer cease and desist infringement. Think of it as the warning to a small child before the time out.
- To demand that the infringer pay lost profits and/or provide an accounting of all profits derived from the infringed work. In reality, this demand just gets the infringer to put the accounting in perspective and to think about how much they might have actually taken.
- To demand that the infringer pay for profits derived by the infringer from the work.
- To notify the infringer that the infringer may be liable for attorneys’ fees and statutory damages ranging up to $150,000 per work intentionally infringed (only if you have a copyright registered before the infringement). There are some U.S. laws that put some ammunition for your attack on the pirates when you’ve tried to play by the rules in setting up and protecting the intellectual property of your web business.
- To notify the infringer that you intend to send a notice of your claims to the ISP that hosts the infringing web site as well as to the major search engines and demand that the ISP and search engines take down or disable the infringing content. Aye, this one is a good swabbin’ the deck trick to take the wind out of their sails (the infringing site no longer comes up on the search engines), and to sometimes, blow the ship out of the water.
- To provide a deadline for responding. You can only be so patient when dealing with pirates, but you better mean it when you give them a deadline.
Beware of the Consequences of a Cease & Desist Letter
If you send a cease and desist letter to a pirate, there is a risk that the pirate hires a Tia Delma (the voodoo priestess in the Disney movie “Pirates of the Caribbean”) also known as an opposing attorney who may file a lawsuit in the infringer’s jurisdiction naming you as a defendant and seeking a declaratory judgment that your copyright is invalid. And, beware because this is a real danger. 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 – the Swabbin’ the Deck Disclaimer Trick
Many web sites that have infringing material add a disclaimer stating that the site does not support copyright infringement. Think about YouTube, MySpace, FaceBook and all those other sites or forums that let users post content. And, the same is true when purchasing a domain and negotiating to have an ISP host that web site – the pirate agrees to terms that the web site will not infringe on the copyrights or trademarks of others. So, the Digital Millennium Copyright Act empowers the intermediaries and ISPs to disable or take down a web site or URLs of a website if there is infringement and to seek safe harbor protection in preventing a lawsuit being filed against the ISP or intermediary. Neat trick, huh? Here’s how you get it to work. You have to communicate a DMCA notice to the DMCA agent that includes detailed information regarding ownership, describing the copyright protected works, describing the infringing works, and meets other statutory requirements.
Walking the Plank — Filing a Copyright Infringement Lawsuit in Federal District Court
If the infringement does not stop or if you cannot reach a settlement with the infringer or if you don’t want to be civilized, then you can file a lawsuit in federal district court and try to make the pirates (infringers, contributory infringers and vicarious infringers) walk the plank. Oftentimes, this is the only way to get back some of the loot because pirates aren’t good at negotiating. But, there is a caveat here too. Pirates also like to spend all the loot, so you might want to investigate whether you can collect on a judgment. Then again, you might want to make an example and try to deter other pirates (at the least the domestic pirates).
In the U.S. 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. Copyright owners may also obtain (subject to approval by the court): (1) a temporary restraining order that prohibits the infringer from infringing the copyrighted work, and (2) a court order authorizing the U.S. marshal to seize the allegedly infringing material(s).
Landing in the Jaws of a Crocodile – Criminal Copyright Infringement
Finally, there are some criminal statutes that might have Captain Hook landing in the jaws of a crocodile. Copyright infringement is a felony punishable by up to 3 years imprisonment and a $250,000 fine under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319 when the pirate willfully reproduces or distributes at least 10 copies of one or more copyrighted works with a total retail value of more than $2,500 within a 180 day period. And, the maximum penalty rises to 5 years imprisonment if pirate acted “for purposes of commercial advantage or private financial gain.”
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