Internet Copyright Infringement – Digital Millennium Copyright Act

If you are a consumer and author of website content, and you suspect someone of stealing your website content, the legal remedies available to you will be based on the Copyright Infringement Law which is governed by the United States Copyright Act.

No Need For Copyright Mark To Enforce Authorship Rights

Your authorship of original works is protected by virtue of your publication of such works. Your legal rights to enforce these property rights do not require labeling your work as such. Posting a copyright symbol is always recommended but it is neither legally conclusive or required to protect your work against theft by third parties.

There are a number of different approaches in order to enforce your ownership rights to your work. The first step is to provide notice of infringement to the offending party directly or to the web host or internet service provider of the offending party.

The Digital Millennium Copyright Act (DMCA)

If there was an unlawful scraping of your website content the first approach is to serve written notice on the infringing party. This is sometimes referred to as a “take-down” notification. The recipient of the notice will usually be the web host or internet service provider (ISP).

Liability of ISP/Host for Publication of Protected Content

On October 28, 1998, new laws were enacted governing copyright liability for online service providers and hosts. The revised laws protect providers and hosts through what is referred to as a “safe harbor” provision to the Digital Millennium Copyright Act which protects them from online copyright infringement liability due to their relationship with their subscriber-web user. Because of this protection, if you are not able to locate the infringing party directly, you will need to send written notice of infringement to the internet service provider/host directly informing them of your infringement claims and they will in turn convey your notice to the alleged copyright infringer.

After written notice is made to the infringing party, either directly by you or through the web host or internet provider, your next step is to either resolve the matter informally with the infringing party or file a copyright lawsuit against the infringing party.

If informal attempts to settle fail, you may proceed with filing a law suit for not only standard copyright infringement damages, but also reasonable legal fees, costs of suit, and all statutory damages that are provided by law.

Defense of Copyright Infringement Claims

It is not unusual for the infringing party to deny that they engaged in internet copyright infringement. This is why it is essential for the owner of the protected content to positively identify the exact time and location that the original download was made.

The goal under these circumstances is to connect-up the copyright offender with the actual content that was downloaded.

Todays advanced technology enables the owner of the content to make this vital evidentiary connection. However it is usually the ISP or Host that possesses this essential information, which is why you may first have to file a lawsuit and then subpoena these records in order to obtain the evidentiary proof you need to prosecute your claims against the infringing web user directly.

What Constitutes Infringement

Ideas are generally not protected by copyright law – but the words that describe those ideas can be. For example, if your article was scraped verbatim and placed on to another persons site, clearly, this is a blatant infringement and you will have a legal right to recover against the infringing party. If however the article was merely summarized by the alleged infringing party and put into their own words, this is usually considered legal under current copyright law. Additionally, it is generally acceptable to copy small excerpts of the copyrighted material under the “fair use” rule so long as a link to the original content is provided.

The Fair-Use Defense – Determining Factors

The Copyright Act provides “fair use factors” to determine whether a particular use of protected copyrighted work falls under the fair-use defense rather then the misappropriation of protected content under internet copyright law.

In determining whether the fair-use defense applies to a given copyright dispute the court may look at the following factors in determining whether to make a finding of copyright violation.

These factors include the purpose and character of the use, including whether the use was commercially motivated; the nature of the copyrighted work; and whether there has been substantial use of the work in relation to the copyrighted work. These factors are weighed by the court in determining whether to impose legal liability against the defendant.

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