July 12, 2013

How to Address Copyright Infringement on the Internet

Almost every single day a prospective or existing client calls and asks how they are to address copyright infringement on the Internet. The answer to the question requires an analysis of what truly is at issue with the copyright infringement. This begins by identifying what the copyright at issue is. For example, is it a photograph, language or other written content, or a video? Once the specific kind of copyright is identified, it is critically important to find out who owns that copyright. While typically the creator of any kind of work is the owner of the copyright, employment issues and work-for-hire doctrines may reveal a different answer. Nonetheless, in order to understand how one is to address copyright infringement on the Internet must begin with confirmation as to ownership of a valid and existing copyright.

Assuming that the work at issue qualifies as a copyright, regardless of if its registered or not, the next step in the analysis is to identify who is making the unlawful use of that copyright. Given that the Internet is available in countries beyond the United States, we first try to determine whether or not we are dealing with a United States entity. There are various ways to confirm this. For example, we can look to domain name registration information, website server hosting information, and other company information to determine whether or not the alleged unlawful user of the copyright is located within the United States. This is important because the DMCA (Digital Millennium Copyright Act) may be an avenue through which a takedown notice can be sent if in fact we are dealing with a United States entity. Alternatively, if we are dealing with an entity located outside of the United States, we need to determine which laws apply to the same. For example, China is a signatory to the Berne Convention and thus allows various ways to address copyright infringement under Chinese and US law alike.

Having identified a copyright, and determined the identity and location of the alleged infringer, a copyright attorney will now advise the client as to its options. While a cease and desist letter is typically a starting point for copyright infringement on the Internet, there may be additional actions that can go with that notice letter. For example, as noted above, a takedown notice via the digital millennium copyright act may also accompany, although separately, any cease and desist letter to an alleged infringer. This will ensure that the web post also provides notice to the alleged infringer and may even extradite the removal of the infringing work if the alleged infringer does not cooperate. Besides letters, it is also important to determine whether a copyright infringer lawsuit can be filed.  In making this determination, it is important to factor in the considerations of the alleged infringers extent of liability, the likelihood of success, the likelihood of collectability, and related factors. Once advised by a copyright lawyer, the client can decide whether or not they wish to pursue a copyright infringement lawsuit.

Ultimately, addressing copyright infringement on the Internet begins with active monitoring of one’s copyrighted content. Knowing how your copyrighted material is being used and by whom allows you to more effectively address instances of copyright infringement on the Internet. Should you identify such infringing activity, you should contact a copyright lawyer who can work through the steps outlined in this post and ultimately address your copyright infringement on the Internet.

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