The DN Attorney: Help, Someone Has Copied My Website Content!

It sure is frustrating to spend time and money writing original text, taking original photos, and coding an original website, only to discover that someone has copied your work and put it on their own website. Not only is this heartbreaking because of the effort that you put in, but you may also be penalized by search engines for duplicate content.

Fortunately, there is often a solution to this problem. The Digital Millennium Copyright Act (“DMCA”) is an American statute that has been around since 1998, and it incorporates another law called “The Online Copyright Infringement Liability Act”. To people in the know, it provides an incredibly effective means of combating unauthorized copying of your original content, through something often referred to as a “DMCA Takedown Notice”.

Do You Own Copyright On This Content?

The first step in using this very powerful tool is to determine whether you genuinely have copyright in your content. If you created original text, or took original photos, or created original coding, or even possibly created an original website layout and look and feel, you may automatically have “copyright” in it as a result of your authorship. However, if you merely copied text from another site, or licensed a photo from an image bank, for example, then you likely would not have copyright in this content.

The second step is to properly identify the party who you believe is infringing upon your copyright. This can often be done by reviewing the “About” section of the infringer’s website, or looking up their website’s domain name using Whois tools.

Sending a Cease and Desist Letter

The third step is not necessarily required but is often advisable, and that is to write a “Cease and Desist letter” to the infringer using the contact information you identified through the aforementioned second step. A good “Cease and Desist letter” will accurately and clearly set out what copyright you believe is being infringed and will also demand that the infringer cease and desist from infringing your copyright by a certain date which you specify. The benefit of sending a Cease and Desist letter rather than just proceeding right to a DMCA Takedown Notice is that you may receive compliance without further effort, or you might even receive a response which provides you with new facts or possibly defenses, that the alleged infringer believes are relevant to the dispute. The other benefit is that you are providing what amounts to a fair warning before proceeding with a DMCA Takedown Notice

The fourth step is to ascertain if the infringing website is hosted by a US webhosting company. This is crucial, as the DMCA generally only applied to US webhosts. Essentially, if a US webhosting company is notified by you through a DMCA Notice that they are hosting a website which infringes upon your copyright, then they have an obligation to remove or “take down” that infringing content, unless the infringing person denies the infringement by submitting what is referred to as a DMCA Counter-Notice, under penalty of perjury. Otherwise, the American webhosting company itself can be liable to you for hosting the infringement, even though they did not create it themselves. 

Sending a DMCA Takedown Notice

The fifth step is the DMCA Takedown Notice itself. It comes into play only if your Cease and Desist letter is not complied with, or if you have chosen to not send one at all. There are very specific requirements about what must be included in a DMCA Notice, but essentially you must send a letter in which you identify the copyrighted work that you believe is being infringed, and state, under penalty of perjury, that the information that you provided is accurate, and that you have a good faith belief that your copyright is being infringed by the content which you are complaining about. Once this DMCA Notice is received, most responsible US webhosting companies will shortly take down the infringing content.

It is also important to be aware, that if you are ever wrongfully accused of copyright infringement and your website is disabled as a result of someone else’s DMCA Notice, there is an opportunity for you to file a DMCA “Counter Notification”, which denies under penalty of perjury that copyright infringement has taken place. Once that is received by the US webhosting company, the webhosting company will generally “put back” your website, at least until the matter is resolved in court.

Although it is possible to prepare and to deliver DMCA notices without the assistance of a lawyer, it is often advisable hire a lawyer to help guide you through the process. An experienced Internet lawyer is often able to handle the entire DMCA notice for you for relatively low cost, and given how quick and effective it is, it can be money very well spent.

Zak Muscovitch is a leading international Internet Lawyer who specializes in transactions and disputes related to domain names and websites. He has represented domain name and website owners, buyers and sellers, all over the world, since 1999. He has assisted buyers and sellers with all aspects of website transactions worth millions of dollars and has set numerous precedents in Internet law. His website is http://www.DNattorney.com. 

Photo Credit: de faria