Sunday, January 9, 2011

BSA: Copyright Infringement & the DMCA

THIS IS A BLOGGER SERVICE ANNOUNCEMENT

I've had my photographs and text stolen twice in the past month. As an attorney, I knew where to look and what to do to rectify the situation--plus I can add that ever imposing Esq. after my name. In the aftermath of my annoyed tweeting, I realized that most of my fellow bloggers don't have this luxury, nor do they know what to do when they find that their hard work has been used without permission. After one too many requests for this information, I have decided to write the following post. My intention is to give the average blogger a place to start—the basic do-it-yourself remedy to internet-based copyright infringement. Please remember that this is general information, and that specific facts may make the following moot. 



Before I discuss the DMCA, a suggestion. Post a copyright notice on your blog. Even if you don't register your blog, your photographs, or your text, your work is still entitled to basic copyright protections. This notice should be easy to find. My notice is in the footer, which is fairly common. Some choose to dedicate a static page to their notice, while others who use varying degrees of Creative Commons licenses post graphics somewhere in their sidebar. The main reason for this is anecdotal. I had a service provider try and deny my take down request because my photographs were not directly marked with a ©. Once I pointed them to my all-encompassing notice, they backed off and agreed to take down the content.* It’s also important to let others know what you will and won’t tolerate with respect to your content’s usage.

So, what do you do when your copyright is infringed upon? Sometimes a polite e-mail to the site administrator will get the job done. More often than not, you're going to have to go elsewhere.  Elsewhere is almost always the web host. Copyright infringement on the Internet is governed by the Digital Millennium Copyright Act ("DMCA"). For our purposes, the DMCA requires service providers (web hosts), when properly notified, to remove content that infringes upon another's copyright. These notices—whether in e-mail or printed form--are generally referred to as DMCA takedown notices, and are governed by § 512(c)(3). I’m going to reemphasize that service providers must be properly notified, as this is why many bloggers are rebuked when they send these requests.

Under § 512(c)(3) of the DMCA, a proper notice includes the following six things:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) 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.

(iii) 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.

(iv) 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.

(v) 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.

(vi) A statement that the information in the notification 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.

Not exactly the most straightforward thing in the world, right? Here’s a few tips on how to turn this into a letter. 

  • Find the web host. If it isn't obvious, try WhoIsHostingThis? or DomainTools. On the host's website, locate their DMCA agent, which is often listed on a legal information or terms of use page. If not, the US Copyright Office has a list here. The person listed is who you will send your letter to.
  • Write simply and clearly. You’re not a lawyer, so don’t pretend to be one. Tell them what you’re writing about and what you want, making sure to check off each requirement, (i) – (vi).
  • Electronic signatures are a weird thing—sometimes just signing off as The Baking Barrister will work, sometimes you need to sign off as /s/ The Baking Barrister. Depends on who you are dealing with.
  • We identify work on the Internet via URL. You don’t need to be fancy to comply with (ii) and (iii). You’re basically just showing them what happened--this is mine, as shown here, and it was infringed upon, as shown here.
  • You are the complaining party.
  • Lawyers often copy statutory language verbatim. I certainly copy the language from (v) and (vi) when writing my takedown notices--with proper grammatical corrections. Note: These two sections are often what bloggers forget to include, as they are the only two requirements that aren’t naturally included in such a letter. Do Not Forget Them.
  • Double check you have included all six requirements. 

Once you send off your notice, what’s going to happen? Service providers are supposed to respond promptly. If they tell you that they contacted the user, keep an eye on the infringing website to make sure it gets removed within the week. If it isn’t, request that they remove it themselves.** And what if your notice is not proper? Under § 512(c)(3)(B)(ii), as long as you have identified your copyrighted work, the location of the infringed work, and provided your contact information, the service provider must contact you when you have not complied with all statutory requirements. At that point, double check, fix, and resubmit.

Hopefully this gives some of you the tools necessary to protect your intellectual property. And hopefully, a proper DMCA takedown notice will rectify your situation. If not? You could always sue someone.

*This likely happens most when dealing with a foreign service provider. Because of treaties and other rules, many of them are subject to the DMCA. While they may honor DMCA requests, their knowledge of what makes something copyrighted in the US might be lacking—especially when it differs from their own country-specific rules. In my experience, being able to point them to something concrete was helpful.

**It’s possible that the user will file a counter-notice against you. In such cases, further action is necessary, which I don't cover here.

Edit: I mentioned in the comments how I keep track of where my content goes. If you have any additional methods, please share them as well. I know I don't have all my bases covered. Thanks.



DISCLAIMER: This post is not to be construed as legal advice or the creation of an attorney-client relationship. It is for informational purposes only and does not reflect any jurisdictional differences or changes in the law. Nor does it reflect any definite outcome of your predicament. In other words, this is general, non-specific information, and if you have any questions or concerns, consult a lawyer in your state.

54 comments:

tastesbetterwithfriends said...

Who would have thought that blogging necessitated a post on copyright, but it does, so thank you from all us laypeople out there!

veggietestkitchen said...

Thanks! I'm definitely bookmarking this page. Quick question though, how do you find out if your content has been stolen in the first place? the web is huge, do you have some sort of automated process set up for that?

Baking Barrister said...

@veggietestkitchen -- a couple ways. First, I have google alerts set up for bakingbarrister & baking barrister -- I get an e-mail every day of where my name pops up. Oddly enough, people leave my name within content. People also seem to think it's okay to use other people's photos even if they link back (I take issue with this, you may not). Another way is activate the Track Back function on your blog. I generally try to get at least one link to another post of mine in every new post. This way, if someone copies my post and doesn't remove the link (very common), it'll show up in my track backs. There are also services like CopyGator that scan feeds.

If anyone else has ways that they monitor their content, please chime in.

Lizzy said...

Excellent info...thank you!!!

Bridgett said...

Excellent idea. I've been pretty lucky these past few years with not having my photos stolen but I know it happens all the time. Thanks for the tips!

Tastemonials said...

Thanks for the info. I've been meaning to put a copyright notice on my blog for ages and just haven't gotten around to it. This is a good reminder.

Gareth @ Stumptown Savoury said...

Thanks! Now I know what steps to take to get my stolen content taken down. This is very helpful to those of us who aren't lawyers.

All That's Left Are The Crumbs said...

Thank you so much for taking the time to post this. I was just talking about this very subject this morning. I am really just starting out, and I don't have great photos now, so I doubt anyone is coveting them right now. However, one day I might have fantastic photos and I would hate to think of them being used without my permission.

What are your thoughts on watermarking your photos?

Victoria said...

Great information! Thanks so much for sharing. I'm really curious what site had posted your content. Maybe they steal from others too. Would you mind sharing? (even in a private email). I should set up google alerts too to see when I'm mentioned... a little behind the times I think, haha.

Kim - Liv Life said...

Thanks for the info! I just recently put a copyright notice on my sidebar. Question though... how did you find out your content had been used?

Tiffany said...

This is SUPER helpful! Thanks so much! BUZZED :D

SprinkleBakes said...

I love you for this. You know why. <3

Doodles said...

Being an amateur photo taker I have always had suspcions that my photos have landed elsewhere.

You are to be commended for taking the time to warn us novices of the in and outs of infringment..........thanks

Mrs. Mix-it said...

BakingBarrister How do I set up these google alerts for my blog cooking underwriter? I use blogspot and Im not sure how you track back too is there a button or something? I just want to make sure no body is stealing my content. Please help!!!

sara @ CaffeIna said...

Uh this post was so useful and not only the post but also your answer to veggietestkitchen. I found out my content was used without permission only a couple of times and just by accident. I so need to go check out. Thanks, BB!

Baking Barrister said...

@AllThatsLeft: Watermarks! Good question. I recently began using them for a few reasons. First, I think it deters a subset of people from stealing your photographs. Some people will go in and crop it out or work some Photoshop voodoo, but that's too much work for others.

Second, Tumblr and photo collection sites like it are all the rage. If someone doesn't link back, and you don't find your photo, at the very least they'll know where to go for more.

But most of all, I started using watermarks because the food blogging community is just that--a community. More often than not, sites that steal content do so from a variety of bloggers. Many of us, when finding our stolen content, will notify others of their stolen content if the owner is easily identifiable. I've done and I've seen others do it.

Dinners and Dreams said...

This is great. How do we know if a photo got stolen?

Natalie said...

ugh so annoying when that happens! i've had it happen before too! thanks for a great informative post though!

LaDue & Crew said...

Fab info...bookmarks this and will be implementing asap. Thanks for sharing this!

All That's Left Are The Crumbs said...

Thanks again. I am going to make the necessary changes to my blog.

whatsfordinneracrossstatelines said...

This is such great information to have. I never would have thought to check. Or what to tell them if I found out about it. I think you have an even better point, that people should help each other out and tell them when they see their work elsewhere.
-Gina-

A little bit of everything said...

thanks for taking the time to let us know about copyrights. I do use a light watermark but never though that my photos would be stolen.
Once again, thanks

Cakewhiz said...

Thank you so much for all of this infol i only recently started blogging but i appreciate these tips so as to adjust my blog accordingly. Once again, thanks alot!!!!

Cathy @ ShowFoodChef said...

Generous and helpful info. Thx for posting and taking the time to help explain it.

Pegasuslegend said...

I have reposted this everywhere fabulous info...sent to Stumbleupon as well thank you for this!

Anna's Table said...

Thanks for such helpful information. I will definitely be following your lead and post the recommended notice. Thanks again

TheChocolatePriestess said...

Thank you so much for this information. Sadly we need to protect ourselves because others either were not taught as children not to steal or merely are lazy and do not want to do their own work. As the author of 8 books now, and a former college professor you'd think I'd know to do this, but now I'm heading off to make a copywrite statement myself.

italianmamachef.com said...

I use the services of Fairshare Feed to alert me when my content is stolen or reposted. So far I've not had anyone steal my stuff but only those allowed to repost have done so. How does one sign up for the google alert thing?

Isabelle said...

You rock. Okay, you totally knew that already, but I figured you'd just need some reminding of that.
Perfect timing, too, since I just caught my first content thief (well, not so much a thief as a poor misguided soul who didn't bother to read my Creative Commons license... sigh). I'm drafting up my very first DMCA notice as we speak.

stephchows said...

you are a rock star, thank you for sharing all you know with us to help protect ourselves!!

Shelly Borrell said...

Thanks for the detailed information -- This stuff pisses me off too.

Carolyn said...

This is such a useful post, thanks!

Sippity Sup said...

Well, as a professional photographer in my "other life" I hate stolen photos. But the web is a different story. I believe the web is all about FREE content. I really do. Anything you hold dear should never be posted online. We are here to promote our brands. If we choose to support those brands with words and pics online (open to the world). Well, then the nature of the beast takes over... GREG

BakingWithoutABox said...

I'm always shocked that people can feel justified in just taking your photos and texts without crediting the author. Just crazy! Great job on reviewing the applicable law!

Monet said...

Yes! Thank you for this information. I'm saving this page and sending it to a few of my blogging friends. You are awesome, my friend. And if I was stealing people's intellectual property, I would be mighty afraid of you :-)

Sara @ Saucy Dipper said...

I know imitation is the best form of flattery, but still...it stinks to have someone copy your hard work.

Thanks for writing this post. You've helped quite a few of us.

Jason Phelps said...

Unfortunately your disclaimer about what you posted makes it less valuable in the hands of the everday blogger, especially if someone they have contacted files a counter-notice. Folks should tread carefully because their attorney time isn't part of the package.

I'm with Greg, the web is a wide open place and concerning yourself with how things you post online are being used is overlooking the fact that you choose to post them for all to see. I have been on the web since the days of the Mosaic browser on 16 bit Windows 3.11 (think 1992). I've seen a lot of things in that time and anyone who has gotten online since should thank their lucky stars for people who allowed their hard work to be taken and used in ways they never imagined. You wouldn't have this platform if it wasn't for those people and their work.

Jason

Baking Barrister said...

@Jason - My disclaimer does not devalue what I have posted. Take a look at the legal blogs or law firm websites out there. Any smart attorney has posted a similar notice TO PROTECT THEMSELVES. Just because I warn that I am not someone's attorney and that the facts of their situation may require something more intricate, it does not mean the post is any less correct or useful 99% of the time. In fact, the only reason I decided to post this was because it's fairly cut and dry as well as easy to accomplish without a lawyer. If someone were going to face a counter-notice, chances are they had an attorney doing this in the first place because there is a dispute as to the copyrighted material. But I'm talking to the average blogger who doesn't register their work because of monetary constraints and will thus probably never be faced with such a counter-notice or will let it drop if they are.

As for this whole free the internet thing, I believe the following. The internet is for free INFORMATION--not content. I am happy to share and be shared with. I am a strong believer in fair use, and I have no problem when someone builds upon something I have done. However, I take issue with someone TAKING my hard work verbatim without permission, putting it up on their website without visible attribution, and then slapping ads in the sidebar. It is not okay to pass someone else's work off as your own--especially for monetary gain--and that is what I see most of the time. And my main contention with those Tumblr-like sites is that they don't ask (hey look! my copyright notice implies that permission may be granted!). I also don't like the fact that they don't just link to the photo, they re-upload it, so should I ever want to pull it, I can't.

In another news, the disclaimer above applies to this comment as well.

blackbookkitchendiaries said...

thanks you for sharing this info with us. its really helpful.

Andra@FrenchPressMemos said...

Believe it or not I don't have a notice on my site. This is a good reminder to get that done- thanks for all the info.

Christine (The Raw Project) said...

Very helpful post, thanks so much.

One Less Thing said...

Hi Baking Barrister, I love your recipes and use them often. If I write about something I make of yours and i say i got the recipe from you, that's fine, right?

Baking Barrister said...

@One Less Thing -- of course! I want people to make what I post and share their thoughts.

Kate said...

Great info! Thank you so much. For those who are starting out, Pioneer Woman has a great piece on what you can use and what you can't. It says a list of ingredients isn't protected but the rest is. That's what I've always relied on to make sure I'm following all the rules and regs.

Velva said...

Excellent information! Thanks for sharing this with us.

Velva

~Chris said...

Thanks for the info. I'll definitely be looking into this further. I don't mind if someone wants to use one of my recipes (as I do others), but at least have the courtesy to give credit where credit is due and link back to my blog.

I found one of my recipes on two different sites - one website and one food blog (with my photo). Neither credited the recipe back to me, and one actually dropped the primary ingredient somehow! I left polite comments for both on the matter, but neither has changed or responded in any way.

As for watermarks, at least one of the popular blog sites Foodista/Blogroll/Foodblogs specifies that you can't upload recipes that contain watermarked photos. That's why I have not been using them. Sigh ...

danasfoodforthought said...

Thanks for posting this... very informative. I don't think anyone will be stealing my dim photos anytime soon. Maybe when I hone my photography skills I'll need this info.... but hopefully not!

The Enchanted Cook said...

Very timely and very helpful. Thanks for taking the time to share this info. I really appreciate it!

Wendy said...

Thank you for the very helpful advice. I too had another blogger take a photo without permission recently and she thought it was perfectly okay to take a photo without permission as long as she hyperlinked it back to me. When I brought it to her attention and informed her that although she took the photo without permission that I would approve it if she’d provide the correct name of my blog and not the incorrect one she had with the photo. Well, she seemed appalled that I didn’t appreciate what she thought she was doing for me. I thought I handled it very professionally, but in this new blog and Internet world, folks seem to be making up their own rules.

When I started my blog over a year a half ago I use the copyright seal and “All Rights Reserved.” Do you think this is enough to protect me or should I spell it out further?

Bernadette said...

What great insight! Thanks for sharing this valuable info.
A fellow avid baker,
Bernadette

Auto accident lawyer los Angeles said...

A great resource for bloggers.

Lynn @ I'll Have What She's Having said...

Thanks for the info. Quick question, what kind of protection does putting a copyright notice without registering a blog offer?
I've found that since Pinterest has gotten so popular I'm having a lot more content stolen.

Baking Barrister said...

@Lynn -- It mostly puts people on notice, since there are a number of popular licenses on the web (creative commons). And as I mentioned above, it can help when you send uninformed ISPs a takedown notice.

Whether you have a notice or not, people are going to steal your content. And whether you have a notice or not, you have a right to sue. Registering just allows you to seek damages and creates an official record that you own the copyright.

jackobsbrandon said...

Website Protection Service

You made some respectable points there. I looked on the internet for this Copyright Infringement dmca issue and found most people will go along with your website

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