Piracy and Infringement
This page is intended only to assist you in managing your intellectual property. It is not a substitute for legal advice. Although many infringements are clear, and particularly so to the copyright holder, you should be aware that improper assertion of copyright is itself prohibited by the Copyright Act. This page is intended to assist authors (and other copyright holders) in:
Last Updated: 02 July 2005
Finding pirated works and infringements is the obvious first step. You should periodically search the Internet for your works, and should pay attention when someone else indicates your works may be found there.
Identifying the infringer comes next. This may not be as simple as it sounds, for both legal and practical reasons. For legal reasons, it is important to know who provides the access services used by the infringer. This often requires use of whois, ping, traceroute, and finger tools, and deciphering message headers. (Forthcoming: a short tutorial on using each of these tools and deciphering message headers.) A suggested toolkit for Windows userskeeping in mind the usual financial resources of writers, which is to say virtually noneincludes:
- whois helps identify who owns a given domain, and who provides services to it. While one can surf directly to one of the registrars' whois servers, they do not crossreference very well, and tend to be seriously overloaded. I use two reliable web-based services: swhois.net for quick lookups and DNS Stuff for geekier and more-intense searches, especially when I suspect foreign origin.
- ping functions to identify the actual machine on which transmissions originate. This can be helpful when the target is, for example, a university, which may have thousands of web servers in its domain. DNS Stuff includes this tool.
- traceroute technically does not require an additional tool, as it is a lowlevel command built into Windows9x and later. However, the Windows command is pathetic, requiring use of the command-line interface, which closes the result window when the trace is complete. Traceroute is important in identifying both the machine and who provides services to smaller sites. DNS Stuff includes this tool; an other Internet-based tool at EasyNews is also reliable.
- finger is more often useful on internal networks than on the Internet, because the finger function also provides a number of back doors into a machine and therefore should be either directly disabled or filtered out by a firewall. This is a tool of last resort, because it is useful only while the infringing individual is actually logged in.
Once you know who is actually infringing your work, you need to see who else may be responsible. This means a trip to the Library of Congress website to consult the Service Provider DMCA Agent Directory. (Note: You must have Acrobat Reader installed to use the Directory.) This is important because it will confirm and expand the results of the whois query performed earlier. Although the DMCA allows an ISP to include contact information on its website, it is not prudent to rely upon the contact forms and addresses typically provided, as they seldom provide you (the sender) with a record copy. The statute requires an ISP to maintain both, so you should rely on the Register's directory. See 17 U.S.C. § 512(c)(2).
Once you find an infringement online (or in e-mail), you should take some action. This need not be an immediate filing of a lawsuit, except in special circumstances. You must balance your own desires for the piece with the probable risk and reward of taking actions. No self-help guide can make that decision for you. This guide lays out options for you to consider, but should not be taken as a formula or progression. In order of increasing seriousness:
- Send a direct notice to the infringer. Remain polite and professional, as in this sample letter (free to copy and use), no matter how provoked you may be. This step can be skipped in particularly egregious circumstances, such as outright plagiarism. However, if used, it will eventually become part of any court record, so don't say anything that will embarrass you or lead to counterclaims. (General notes are at the end of this list.)
Dear [Sir | Madam]:
On [date], I noticed that your [site | email newsletter | electronic message | electronic product] [exact name and URL, ISBN, or ISSN, if available], dated [apparent date of infringement], includes an [attributed | unattributed] copy of material that infringes on my exclusive right in the [story | article | review] [writer's title]. This work originally appeared in [publication data]. According to my records, I have not authorized this use.
Please contact me immediately so we can work out either an appropriate agreement for this use or an agreement to terminate this use.
- Send a DMCA notice. This is an inexpensive option, and a major tool in combatting electronic piracy. Before sending a letter like the one below (free to copy and use), copyright holders should consider the following (general notes are at the end of this list.):
- Only the copyright holder or an authorized agent of the copyright holder (such as a lawyer, family member, or literary agent) may send a DMCA notice.
- All facts must be accurate and attested to under penalty of perjury. Although "perjury" means "knowing," don't rely on an "ostrich defense" if something seems odd or uncertainget legal advice. I wish more corporations and businesses would do so when confronted with a claim!
- Descriptions need not be exhaustively detailed, particularly as addresses (particularly website addresses and network news message identifiers) change frequently and unpredictably. The statute requires only that the letter "substantially provide" the information in question. If an unsophisticated individual could find the infringing material from the address information in the letter, it "substantially complies," see ALS-Scan, Inc., v. RemarQ Communities, Inc. (4th Cir. 2001); RIAA v. Napster (9th Cir. 2001).
- There are no "magic words" that must be quoted in the letter, nor must a work's copyright be registered before sending the lettercontrary to the claims of many parties, including major ISPs such as AOLTimeWarner (and its subsidiaries) and Verio and domain registrars such as GoDaddy.
- Do not rely solely upon an internet form provided by an ISP that purports to comply with the DMCA's requirements. These forms may be convenient, but they do not provide you an adequate record of your ownand they are frequently inadequate in the first place.
- Print a copy of the DMCA agent designation from the Copyright Office's directory. If you could not find the service provider's data in the directory, make a signed and dated note of that failure, and (if possible) list all of the names you used attempting to find it. Service providers do not get the benefit of the DMCA's safe harbors if they do not comply with the public notice requirements.
Demand Under the Digital Millenium Copyright Act
Dear [Sir | Madam]:
On [date], I noticed that your [site | email newsletter | electronic message | electronic product] [exact name and URL, ISBN, or ISSN, if available], dated [apparent date of infringement], includes an [attributed | unattributed] copy that infringes on my exclusive right in the [story | article | review] [writer's title]. According to my records, I have not authorized this use.
Pursuant to the Digital Millennium Copyright Act, this letter serves as actual notice of infringement in the event of legal proceedings. The information in this notification is accurate, and under penalty of perjury, I state that I am the owner of an exclusive right infringed by the specified material. Pursuant to 17 U.S.C. §§ 512(c)(1)(C) and 512(g), a telephone or other oral response is not satisfactory.
- Notify the service provider. Again, this is an inexpensive option. Copyright infringement violates the terms of service of virtually every service provider. The sample letter below (free to copy and use) may be helpful in obtaining assistance from the service provider. Unfortunately, this doesn't always work, and it raises the stakes by involving a third party in the dispute. Reasons that it may not work include bureaucracy, willful refusal to act, explanations by the infringer that satisfy the provider that the infringer has the right to use your work, conflicts of interest, and just plain ignorance. Accurate assertions of fact are critical; an inaccurate assertion of fact could expose you to a lawsuit or counterclaim for defamation. (General notes are at the end of this list.)
Demand to ISP Under the Digital Millenium Copyright Act
[user or site name of infringer]
Dear [Sir | Madam]:
A [webpage hosted by your service/communication originating on your service], designated ([full URL or message identification]), retrieved [date and time], infringes upon my exclusive right in [title]. I have attempted to resolve this directly with the account holder without satisfaction. Please remove the referenced material from your service and take other appropriate action against the account holder to prevent future infringement.
Pursuant to the Digital Millennium Copyright Act, this letter serves as actual notice of infringement in the event of legal proceedings. The information in this notification is accurate, and under penalty of perjury, I state that I am the owner of an exclusive right infringed by the specified material.
Please contact me promptly to confirm the action you have taken. Pursuant to 17 U.S.C. §§ 512(c)(1)(C) and 512(g), telephone or other oral notification is not satisfactory.
- General notes on sample letters:
- Proofread all identification information carefully. It will be helpful to a third party to state as much identification information as you have for the infringer, as an ISP has greater responsibilities for repeat infringersand you may not know whether this is the first infringement by this user.
- It is very important to ensure that dates are correct. Frequently, electronic sources do not have dates. You might be able to find a date by looking at the source code of a webpage (in FireFox, <ctrl>U; in Internet Explorer, View | Source), but that is only a little better than a guess. If the material allows you to approximate the date, state so; otherwise delete the reference to the apparent date of infringement.
- If the work has not yet appeared, but is scheduled to do so, give as much information as you have available. If the work was self-published by you (for example, on your own website), indicate that.
- Get sound legal advice. Although it is possible to take steps beyond these, you should not do so without legal advice (even if you intend to do the work yourself to cut costs).
You need legal advice if:
- You are the creator of a work, but are unsure whether you hold the copyright.
- You are the holder of a copyright, but are unsure whether a use merely exceeds that which you granted to a publisher.
- You have taken appropriate self-help steps without obtaining a satisfactory result.
- The infringer is, or appears to be, located in any of the following countries, which either are not signatories of the Berne Convention on Copyright or do not have adequate systems in place to resolve copyright disputes (updated 27 June 2005). This is not an exhaustive list, and you should keep in mind that several top-level domains are global (.com, .net, .org, .edu). This makes use of whois particularly important in those domains.
- AfghanistanICANN (internet) country code is .af | Angola.ao
- Belarus.be | Bosnia and Herzegovina.ba |
Brazil.br | Brunei.bn
- Cambodia.kh | Caymen Islands.ky | Chad.td |
China (People's Republic of).cn | Cyprus.cy
- Iran.ir | Iraq.iq | Israel.is
- Laos.la | Latvia.lv | Lithuania.lt
- Moldova.md | Montserrat.ms | Myanmar.mm
- Saudi Arabia.sa | Slovenia.si | Syria.sy
- Taiwan.tw | Turkmenistan.tm | Tuvalu.tv
- Uganda.ug | United Arab Emirates.ae |
- Vanuatu.vu | Vietnam.vn
The effectiveness of the systems in place in a number of other countries, such as Russia (.ru), remains highly doubtful; however, the systems at least do exist.
- There is more than one copyright holder (such as for a jointly authored article), and not all copyright holders either are aware of the infringement or have agreed with the particular action taken and result (or lack thereof).
- The infringer has not republished the entire work, and asserts that the infringement is "fair use." As a general principle, there is no fair use defense to republishing an entire work, even for scholarly or other commentary. There are exceptions, though, and the scope of the fair use privilege (17 U.S.C. § 107) is not for the faintheartedor nonlawyerto determine.
- A previously authorized distributer (generally publisher) has gone or is going through bankruptcy or another change of ownership other than voluntary dissolution. The Bankruptcy Code (Title 11) has many traps for intellectual property, and the various laws of corporate governance have even more.
- The rights you granted to a previously authorized distributor have been assigned to a third party, and you do not have the paperwork for the assignment between the two parties. A letter from your previous publisher is helpful, but you really need the assignment itself. In the best of all possible worlds, a complete copy of such an assignment routinely would be forwarded directly to the author. This is not the best of all possible worlds.
Although there is a great deal that one can do without a lawyer's assistance to assert a copyright, there are many pitfalls once one moves past a simple, obvious infringement. There is no substitute for legal advice from an attorney whose practice includes copyright law.
Finding a lawyer is easywe're in the Yellow Pages under "Attorneys." Finding the right lawyer can be much more difficult. First, although under the Rules of Professional Conduct lawyers cannot claim to be "specialists" (except in patent and bankruptcy law), we areeven more than are physicians. The difference is that there is no certification for legal specialties. One look at my vita (link in the navigation panel) should hint that I am definitely not the right attorney to advise you on, say, the purchase or lease of commercial real estate.
You should attempt to find a lawyer who is used to working on the "left side of the v." Even within intellectual property law, publishing law, and sport and entertainment law, attorneys tend to specialize. For example, I work almost entirely on the author's/creator's side. I can provide advice to a publisher (and have) on how to structure a contract; my advice, however, will be colored by my strong pro-author bias. Unfortunately, the majority of attorneys who do practice in one of these areas work on the distributor (or "middleman") side, which can warp the perspective of any advice. Attorneys who do not practice in the area can often be more dangerous than they realize, as there are many terms of art and industry customs that are, at the least, inconsistent with what one learns in law school (even in a copyright class).
That said, here are four places to begin searching for a lawyer (plus, of course, you may contact me). I have listed them in the order I suggest trying them.
- If you are a member of one of the major writers' organizations, the organization may have a staff attorney or outside counsel whom you can consult. He or she is almost always aware of any similar circumstances, which can prove very helpful.
- The Volunteer Lawyers for the Arts can often provide some basic advice. Keep in mind that the VLA is a group of volunteers, and not ordinarily litigation counsel for authors. However, the VLA is an excellent source of basic advice, particularly on where (and whom) one can sue.
- One can attempt to use the American Bar Association referral network. This may be futile outside of a major metropolitan area for copyright and publishing law issues, however. There is a nominal cost to use the system.
- Last, and definitely least, are the various online lawyer directories. The principal ones include Martindale-Hubbell and FindLaw's Find a Lawyer (which is owned by the West Group). These indices, contrary to their public posturing, are not very inclusive, and are almost completely unverified. Martindale-Hubbell purports to rate lawyers; don't bother relying upon them, because a lawyer must pay a fee and request a rating. The fee is not cheap: anything more than a basic "I exist as a lawyer" listing costs $1,300 or more. West's system is similar. Even aside from these problems, the accuracy of the system leaves a great deal to be desired.