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Copyright Resources

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 Piracy

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 users—keeping in mind the usual financial resources of writers, which is to say virtually none—includes:

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).

Sinking Pirates

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:

Legal Advice

You need legal advice if:

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 easy—we'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 are—even 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
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Charlie Petit
cepetit@scrivenerserror.com

Intellectual Property Rights

© 2001–06 C.E. Petit, Esq. All rights reserved.

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