DMCA Abuse

March 28, 2013 by Leave a Comment
Copyright license choice by opensourceway from Flickr

Copyright license choice by opensourceway from Flickr

The Digital Millennium Copyright Act (DMCA) is part of the copyright law. Its purpose is to protect people who provide online forums but don’t control the content people post to them – like YouTube and Pinterest. If they receive a notice that material on their site is allegedly copyright infringement, they must remove it. This law gives content creators a way to react to copyright infringement when someone posts their work online without permission. Instead of sending a cease and desist letter to the person who stole their work, they bypass them and deal with the infringer’s webhost instead.

Lately, I’ve seen a few instances where people have been improperly using the DMCA to get material removed from the internet that they don’t like. I’m starting to refer to these acts as DMCA abuse.

1. Using the DMCA to address TM Infringement
The DMCA should only be used for copyright issues – when you suspect someone is using your original content without your permission. Don’t use it to removed suspected instances of trademark infringement.

In a recent incident, GoPro allegedly sent a DMCA takedown notice to DigitalRev’s webhost to remove a picture of its camera from the site. The photo was in article that compared GoPro against another camera. GoPro didn’t think DigitalRev copied their content, but that they were using a picture of the camera that had the wrong branding. GoPro should have sent DigitalRev an email with a correct image of the camera instead of getting the whole article pulled for alleged copyright infringement.

2. Using the DMCA to Eliminate the Original
This story really bothered me. Somebody copied someone’s original content onto their site, and then used the DMCA to claim that they were the real owners and get the original removed for its site. Thankfully the original author could get their work put back on their site by sending a DMCA counter takedown notice.

Apparently this is a common incident. This behavior was so disturbing, I had to make a video about it.

If you think you have questions about how you, your brand, or your content is being used online, please consult an intellectual property attorney. Don’t just send a DMCA takedown notice – that may not be the right tool to address your problem. When you send a DMCA takedown notice, you attest under the penalty of perjury, that your statements are true. If you send a DMCA takedown notice and it turns out what you did qualifies as what I call DMCA abuse, you may have committed a crime.

For more information about copyright, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , ,

Choose Your Strategy to Protect Your Work Before Posting it on the Internet

January 17, 2013 by 2 Comments
My artwork for Dans office by Romers from Flickr

My artwork for Dans office by Romers from Flickr

A friend recently asked me about a common situation her clients face. They are artists who, before the internet, could only show their work to a large audience at art festivals. She said these artists hesitate to market their work online because they’re afraid that it could be stolen.

Could their work be illegally copied if they show it on the internet? Yes. I worked with an artist last year who had their entire catalog illegally copied.

Should they us the internet to market their work despite this risk? Probably. If you’re an artist you have to weigh the risk of having your work illegally copied against the benefit of reaching a larger audience.

My unsolicited advice to artists is to decide how you want to respond if your work is stolen before you put your work out there and plan accordingly.

  • If you want to sue the people who illegally copy your work, you have to register your copyrights with the U.S. Copyright Office.
  • If you want to license your work, meaning people can pay you for the right to reproduce your work on their sites, you need to have licensing terms and fees. This way people can legally purchase the rights to use your work and you can send a bill to the people who illegally copy your work. This recently happened to a friend of mine.
  •  If all you want to do is force them to remove the image when you detect someone’s stolen your work, you need to understand the Digital Millennium Copyright Act or know an attorney who does who can send the proper takedown notice on your behalf.

When you put your work out there, you should be diligent about watching the internet for potential infringement. Often times people think they can use your work if they provide an attribution and a link to the original. What they’ve really done is made it easy for you to determine who is using your work without your permission.

My two cents on this issue is you shouldn’t let your fears about copyright infringement prevent you from using the internet to market your work if you’re an artist, but you should have a strategy in place in advance for dealing with it when it occurs.

For more information on this and related topics, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed, available on Amazon.

You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , , ,

Options When Someone Violates Your Creative Commons License

September 13, 2012 by 6 Comments

Portion of C.C. Chapman’s Twitter feed – September 10, 2012

I saw the following tweet the other day by author C.C. Chapman: “Since my photos are licensed under “non-commercial” is this a legal use of my Chevy Volt photo by Yahoo?” The question was followed by a link to an article on Yahoo Auto about GM’s report regarding whether Chevy Volts are being sold at a loss. The photo accompanying the article is C.C. Chapman’s photo of a Chevy Volt that he published on Flickr with a Creative Commons license.

This license requires anyone who uses the image to give C.C. Chapman the attribution, only use it for non-commercial use, and not alter the photo in any way. If the image appeared on Chevrolet’s blog, there would be a strong argument that Chevy uses its blog as a marketing tactic to get people to buy its vehicles; therefore every image on the blog is being used for a commercial use. In that case, the use of the image would have violated the license and C.C. Chapman’s copyright.

However, Yahoo published the article. Yahoo isn’t trying to sell cars. It makes money by selling ads and it may charge advertisers based on the number of hits a page gets. C.C. Chapman could make an argument that Yahoo’s use of his photo had a commercial goal; but Yahoo could fire back that it was reporting the news so its use of C.C. Chapman’s photo was protected by fair use. Yahoo could show that it has a history of news reporting and that its articles are accepted as news, not a marketing ploy.

But let’s say this photo appeared on a commercial website in violation of the Creative Commons license. That’s copyright infringement. What could C.C. Chapman do about it?

  1. Do nothing and be happy about the exposure.
  2. Get the photo removed by sending a DMCA takedown notice.
  3. Send the company a cease and desist letter.
  4. Send a bill with a licensing agreement and a letter that says the publisher has committed himself to paying a licensing fee since he already used the photo.
  5. Sue for copyright infringement.

A lot of people would be happy about the exposure and may opt to do nothing. The downside of doing this is someone else could use your work and make a valid argument that your inaction set a precedent that others could use their work for commercial purposes. You may want to send a letter that offers to license the photo in exchange for the exposure and states if the company doesn’t license it then they have to remove it. That way, you will still get your exposure but you still exert your copyright rights in your work.

If you have questions about how to protect your intellectual property rights, contact an intellectual property attorney (like me) in your community.

Feel free to connect with me via Twitter, Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

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Filed Under: Intellectual Property, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , , , ,

DMCA Takedown FTW: The Follow-up

July 19, 2012 by 2 Comments

Don't Steal by Uncleweed, Ruth Carter, Carter Law Firm

Don’t Steal by Uncleweed

Last week I posted a blog about my experience sending a Digital Millennium Copyright Act (DMCA) takedown notice to Google. A few questions have come up since I put up the post, and I wanted to address them.

When I first noticed that another blogger had taken a photo from my blog and posted it on her site, one of my friends asked me why I sent a DMCA takedown notice instead of just sending her an email. That’s a valid question, and an option I considered.  I chose to send a DMCA takedown notice because I’d never sent one before I wanted to experience the process. I had no malicious intent. The blog where the copyright infringement was occurring was taken down in about 24 hours, and the blogger who stole my work changed the image and had the post back up in less than a day after that.

It seems like a lot of people use images they find online without thinking about the potential legal implications. This situation could have been a lot worse. My blog is not currently registered with the U.S. Copyright Office, but that’s on my to-do list. If I registered my blog and sued for infringement in this situation, I would only be eligible for my actual damages, which is probably nothing.

If you steal an image from a blog that was registered with the U.S. Copyright Office within 3 months of publication or 1 month of learning of the infringement (whichever happens first), you could be sued for copyright infringement and ordered to pay the copyright owner’s statutory damages and attorneys’ fees. In the worst case scenario, you could be ordered to pay up to $150,000 in damages plus attorneys’ fees.

So what’s the take home lesson? Be thoughtful about the images you use on your blog. Only use images that are available under Creative Commons. If there’s an image that you want to use that doesn’t come with a Creative Commons license, get permission from the copyright owner to use the image.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , , , , , , ,

DMCA Takedown FTW

July 12, 2012 by 11 Comments

Poolside Studying, Ruth CarterI think I do a decent job monitoring my blogs with my sites’ widgets and Google Analytics. I like to see where my readers live and how they ended up on my sites. When I see that someone got to my blog from a site that’s unfamiliar to me, I try to find the post that linked to my site to see what it said.

Poolside Studying, Ruth Carter

This is the image that was stolen from The Undeniable Ruth

This week, someone got to The Undeniable Ruth via a blog on BlogSpot. I checked out that blog and found that the blogger didn’t write a post that referred to me or a topic I’ve written about. She copied an image from my post about studying in the pool. She mentioned the name of the post she got the image from, but she didn’t ask my permission to use the image or even give me an attribution. Unfortunately for her, she copied one of the few images that I personally took with my camera phone and own the copyright to it. I decided to send a Digital Millennium Copyright Act (DMCA) takedown notice to Google, which owns BlogSpot.

The DMCA is a law that provides a safe harbor to companies that don’t control the content on their sites. They have to remove or disable access to the infringing material when they receive a DMCA takedown notice or else they can be liable for copyright infringement. To qualify for protection under the DMCA, you have to register a designated agent with the U.S. Copyright Office. This is the person you send the takedown notice to.

Google has a DMCA agent, so I sent them a takedown notice to get my picture taken off BlogSpot. A takedown notice is a simple letter that must include the following:

  1. Your physical or electronic signature,
  2. The identity of your work that is allegedly being infringed,
  3. The specific URL for the website where the infringement is occurring,
  4. Your contact information (i.e., your address, telephone number, and/or email address),
  5. A statement that you have a good faith belief that the material violates the law or the copyright owner’s rights, and
  6. A statement, under penalty of perjury, that the notice is accurate.

I emailed my takedown notice to Google yesterday and I got a response today that informed me that the post was taken down. I tried to visit the BlogSpot post where my photo was published, and verified that the blog post was taken down. I thought they were only going to remove the photo. She can put the post back up if she wants, just not with my picture.

If you create content, it important to keep an eye on your analytics so you can detect when someone steals your work. I was pleased to see that the DMCA takedown process was fast and easy and that Google was responsive to my notice.

If you detect someone’s stolen your content, consult an attorney to determine your options for recourse.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , ,

Phoenix Comicon Badge Art Being Ripped Off

June 21, 2012 by Leave a Comment

Phoenix Comicon 2012 Badge Ruth Carter

Picture from my 2012 Phoenix Comicon Badge

I recently wrote a post about copyright, fair use, and fan fiction and I did an analysis of Marty Freetage’s artwork that was on the badges for Phoenix Comicon this year. It was an awesome parody of Angry Birds and The Avengers. Parodies are generally permissible under the fair use doctrine and I thought Marty’s work was original enough that the copyright holders for Angry Birds and The Avengers probably wouldn’t come after him or Phoenix Comicon for copyright infringement.

Shirt on Gabilife.com

This week I was surprised to see a t-shirt for sale on Gabilife that looks exactly like Marty’s picture. A lot of people on Facebook posted that Gabilife used Marty’s work, changed the background, and stuck it on a shirt. Whoever owns the copyright in the badge art has good reason for believing that their Gabilife is infringing on their work.

This story gets more complicated by Gabilife claims to be a company in India. It raises the question of what are the possible recourse options to make them stop selling the shirt. If they have a presence in the United States, whoever owns the copyright could go after Gabilife for infringement as if they were a US-based company.

Gabilife’s terms state “Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent.” I searched the agent list on the US Copyright website and I didn’t see a listing for Gabilife or Gabi. That makes me wonder if they just copied someone else’s terms and conditions without registering an agent.

If owned the copyright for the original badge art, I’d register the copyright in the artwork immediately. A copyright holder maximizes their options for recourse if they register their copyright within 3 months of publication or 1 month of learning of the infringement, whichever happens first. If this art hasn’t been registered, that window could still be open.

If the work was registered in time, I’d sue them for copyright infringement if it was a US company. If the company doesn’t do business in the US, there’s probably no point to suing them. If suing them would be pointless, I’d either send a DMCA takedown notice to the email address listed on their site and to their snail mail address. If I wanted to be really bold, I would send them a licensing agreement and a bill that states that they agreed to the licensing agreement by using the artwork without permission.

I wouldn’t expect them to pay me, but it would be validating.

So what is the take away message?

  1. Register your copyrights shortly after creating an original work, especially when you’re as awesome as Marty.
  2. If you suspect someone is ripping off your work, contact a copyright attorney in your community (like me!) to help you strategize and execute your response.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

 

Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , ,

Copyright Infringement on Pinterest

March 1, 2012 by 21 Comments

My bulletin board (for inspiration) by Monica Arellano-Ongpin

There’s a strong possibility you’re committing copyright infringement on your Pinterest board.

For the sake of full disclosure, I’m not on Pinterest. I don’t need another internet addiction. From what I hear, everyone who’s on it, loves it. Essentially, Pinterest lets you create “boards” where you share pictures of things you like. As you visit various websites, you “pin” things that you like, and add them to our Pinterest boards. Then people who visit Pinterest can see your boards and everything you like.

So Where Does Copyright Come Into Play?
Copyright protection is extended to any original work of authorship that is fixed in a tangible medium. You don’t have to register it with the U.S. Copyright Office to get this protection. When you have a copyright in a picture or other work, you have the exclusive right to copy, distribute, display, and perform the work and to make derivative works based on your work.

If you take a picture, you have the exclusive right to decide where it will be displayed, including on which websites. When someone pins your picture and adds it to their Pinterest board, they likely made a copy of it without your permission. That’s a violation of the Copyright Act.

What About Fair Use?
The Fair Use provision of the Copyright Act allows you to copy a work for the purpose of criticism, comment, news reporting, teaching, or research. Pinning something on your board probably doesn’t qualify as any of these things.

Is Pinning Someone’s Work Ever Ok?
Absolutely! You can pin someone’s work without worrying about being sued if they’ve given you permission to do it. Look for works that come with a Creative Commons license. You may be required to give an attribution to the author when you pin their work. If a work doesn’t have a license, you could always ask the author for their permission to pin their work.

Should I Be Worried about Pinterests Terms & Conditions?
Probably. Have you read them? A woman who is a lawyer and a photographer recently deleted her Pinterest boards after reading them. According to her, Pinterest users agree to some strongly worded terms.  If you are a Pinterest user, you’ve agreed

  • You own or have permission to use everything you pin on Pinterest;
  • That nothing you pin violates or infringes on any third party’s copyright, trademark, or other intellectual property or rights to publicity or privacy;
  • You will defend, indemnify, and hold Cold Brew Labs (Pinterest’s creators) harmless against all claims, damages, and expenses (including legal expenses) related to your use of the site or violations of the site’s terms and conditions; and
  • You accept all the risks related to using the Pinterest site “to the maximum extent permitted by law.”

So, if you and Pinterest get sued for copyright infringement for something you pinned on your board and you lose, you’re required to pay your and Pinterest’s legal fees and the fine assigned by the court. The fine for willful copyright infringement can be up to $150,000. (Hat tip to Cold Brew Labs’ legal counsel on drafting such great terms and conditions!)

What Do I Do If My Copyright’s Being Infringed on Pinterest?
You have three main options when your copyright is being infringed on Pinterest:

  1. Nothing.  If you don’t have a problem with it, do nothing. I think a lot of people select this option because Pinterest exposes their work to a larger audience.
  2. Sue for copyright infringement. This can be a long expensive process, but it’s your best chance for a financial gain.
  3. Send a DMCA takedown notice. If all you want is for your work to be removed from someone’s board, send a Digital Millennium Copyright Act takedown notice to Cold Brew Labs’ statutory agent. The Copyright Act tells you what information you have to include in the notice, or you can find a local attorney to do it for you.  Once Cold Brew Labs gets the notice, they’re required to remove the work that allegedly infringes your copyright.

From what I know of Pinterest, I suspect copyright infringement is occurring on most Pinterest boards. You have to decide for yourself how much risk you’re willing to take. If you need help assessing the legal risk related to your Pinterest boards, contact a copyright attorney in your area.

UPDATE (3/26/2012): Pinterest announced its new terms of service will become effective on April 6th. They allegedly make it easier to report copyright infringement.

Filed Under: Intellectual Property, Photography & the Law Tagged With: , , , , , , , , , , , ,
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