A case of copyright infringement

Have you written some text for your web site which is appealing to search engines? Do you publish interesting information that is sought after by a lot of people? Well, you better make sure that your competitors are not copying your intellectual property for their own use.

Copyright infringement has happened more than once to us over the years. Large cooperations to small companies and single entrepreneurs have copied our copyrighted content and put it online on their own sites.

In this article we’ll give you some ideas what to do when you discover that somebody copies your content…

How do we find out if somebody copies our content?

Well, just enter some of your popular phrases into Google and discover which other pages contain the same phrases.

Google allows you to search for a full string. You just have to enclose the string in quotes („).

Here’s an example of a text which could be on your site (example taken from the Euregio.net Homepage):

With a modern data center at the heart of Europe, in Brussels, we offer high speed internet connections, colocation services, web hosting and domain name registration. We take care of all the specific requirements for national (.be), European (.eu) and international (.com, .net,…) domain name registration.

Now you should take up to 32 words from this text and enter it into the Google Search box.

Example:

With a modern data center at the heart of Europe, in Brussels, we offer high speed internet connections, colocation services, web hosting and domain name registration.

Google will then reveal the sites which contain that phrase. Make sure that you look at each of the sites to find out if their are linking to your content or quoting the source of the text.

If this is not the case, then you might have found a case of copyright infringement. A link to your content might be a good thing — so you could allow a few phrases from your page to be used on another site along with a link to your site. This is very common in the blogosphere.

Copyright infringement — what now?

There are several steps that you can take when you discover another site is using your content without permission. What follows should NOT be considered as legal advice but it is based on our own experience.

In the 11 years that we’ve been on the Internet, we’ve spent more than €50,000 in legal fees to protect our intellectual property (content, trademarks, domain-names, code).

For most companies it is interesting to have a legal insurance plan to protect her from legal expenses such as lawyer’s remuneration and court filing fees. In Europe it is very common for a company to have that kind of protection. Our legal insurance is provided by ARAG through European Finance Group.

First step: Make a copy!

The first step when you discover a copyright infringement is to take a copy of that page. Print out the infringing page and also save the source code to your hard disk. Make a backup on CD-ROM or other removable media which can be stored in a secure place.

As the Internet is always evolving and changing, you should also note the time and date when you saved that evidence.

Tip: If you want to be on the safe side, you should ask your local notary to take the copy and create a notarial act of it. This will give your evidence more weight in the courts of law. The notary certifies that the evidence is accurate and has not been tampered with. A notarial act costs money! Check if your legal insurance covers this!

Step 2: Notify the infringer

You should always give the benefit of the doubt (in dubio pro reo) to the infringer (copyright thief), i.e. give them a chance to rectify the situation.

Some people might not now that they are infringing on your copyright or they might have used an external contractor which acted on their behalf but without knowing the details.

Contact the owner of the web site where you found the copy of your text. Let them know that you are not happy with the situation and they should remove the infringing content. Give them an ultimatum by which the content must have been deleted.

Usually, you can find the owner of a web site in the impress, the contact form or in the WHOIS data of the domain name. If it is a social networking site like MySpace, Clipfish, YouTube, GeoCities etc. then you should get in contact with the copyright department of that site. Many big companies also list their copyright agent on the web site which can be contacted for any copyright violations. You can find that address in the „Terms and Conditions“, „Copyright“ or on the „Privacy Policy“ pages.

Tip: Always print out any correspondence so you’ve got a paper copy! You might also want to check the log files of your mail server to find out if your message has been delivered to the recipient’s server.

Example message:

To whom it may concern,

We’ve discovered that your web site (http://www.domain.com) contains a copy of our intellectual property at following address: http://www.domain.com/full/path/to/page.html

Our original copyrighted content can be found at this location: http://www.oursite.com/path/to/page.html

As you can see, both texts are identical. You don’t mention the source nor do you link to our site. This usage of our content is not permitted without our written permission.

Please remove our copyrighted text from your web site within the next 7 days or we have to forward this matter to our legal advisor.

Yours sincerely,

your name, job title and address

After sending that message, continue to monitor the infringing site and make a note (print out) of any changes. Always include the date and time of the changes.

If the infringer hasn’t complied with your request of removal within the given ultimatum, you should sent another message and final warning to them:

To whom it may concern

On date of first message, I contacted you already because you are stealing our content and using it on your site (http://www.domain.com) without permission.

I had offered you a grace period of 7 days to remove the content. However you decided to continue using the copyrighted text without permission.

If our intellectual property is not removed within 24 hours, I will forward this matter to our lawyers.

Should you include the text again, we will take it directly to the courts.

There will be no further warning!

Regards,

Tip: If you can find a fax number belonging to the infringer, then send your last warning by fax as well. Some people don’t check their e-mails regularly, however a fax message usually gets noticed.

Additional routes to go:

  • Find out who is hosting the web site of the infringer and notify their technical staff or copyright agent. Most serious web hosting companies will act immediately on copyright infringement and close the offending account.
  • If the web site sells advertisements or has other means of generating money, then contact the third parties which handle the ad sales, payment gateway etc. Tell them about their member stealing content from other sites. Usually these third parties will terminate their relationship with such an individual.
  • Check the infringers site to find out if other content has also been stolen from other sites. Copy text from the infringing site into Google and find out if there is another legitimate owner. You can then contact the real authors to tell them about your findings.
  • Try to locate the nearest police station to the infringer. You can send a message to the police telling them that you are investigating illegal actions of one of their community members (Cc: the infringer in your mail or fax).

After these different steps, the infringers should realize their wrong-doing and remove your content from their site. Make sure to monitor their site for some time to see if your content shows up again.

Up until now, you’ve only invested your own time and maybe the notary fees to resolve the copyright infringement. If the infringer hasn’t complied with your request so far, you should talk to your insurance agent and discuss the next steps because it will involve a lawyer. A good legal insurance will let you choose your intellectual property lawyer to take the case to the next level.

Euregio.Net relies on the legal services of CMS DeBacker and was represented by their partner Tom Heremans on numerous occasions.

Step 3: Official Cease and Desist Letter

Your lawyer can send an official cease and desist letter to the infringing party. Wikipedia mentions that anybody can send such a letter, however if it comes from a law office, it will have more weight.

This letter should be sent by all means you have got, such as registered mail, fax and e-mail.

Example of Cease and Desist Letter:

<Address of the infringing party>

By registered mail,
e-mail (<email of the infringing party>),
and facsimile (<fax number of the infringing party>)

<location>, <date>

<Address and contact information of your lawyer>

Sirs,

We represent the interests of the company <your company name>, incorporated under the laws of <country or state>, established in <your address>.

Our client runs and owns a web sites called <your website> (<http://www.yourdomain.com>). The web site contains text and images that are protected by copyright law. The site as a whole is also protected.

Our client has noticed that you are infringing its copyrights on a page of your web site under the URL <http://www.infringersite.com/page.html>. On this page you have reprinted without our client’s permission the following text:

<… insert text here …>

Our client has instructed a notary public to make a certified copy of the content of your web site. The notary public, <name of the notary>, has done so and registered its findings in the public register.

The original text that you have copied from our client was first published in <date of first publishing> and was last changed on <date of last change>.

You are not only infringing upon the copyrights of our client, your conduct also constitutes an act of unfair competition.

Your behavior is unacceptable and we therefore urge you to immediately refrain from further using our clients‘ text, quoted above, in whole or in part, as well as any other material protected by our clients‘ intellectual property rights.

We insist that you confirm to us that you have ceased and will further cease any and all use of our clients‘ text and other material. You must also inform us since when you have been using our clients‘ text and you must accept to compensate our client for the damage sustained by the copyright infringement and the act of unfair competition.

Besides monetary damages, our client seeks compensation by a publication on your <www.infringersite.com> web site of the acknowledgment that you have infringed its copyrights.

If I do not receive your written confirmation of the above before <date of ultimatum>, I will not hesitate to take further legal actions without any further notice.

Sincerely yours,

<Signature of your lawyer>

After receiving such a letter, the infringing party should have removed your content from their site. If they are stubborn and don’t react to your lawyer’s letter, you have to keep your word and take further legal actions.

Legal Actions

The copyright infringer doesn’t seem to care about your intellectual property and therefore your lawyer should take the next steps, such as filing suit in a legal court. Our advice ends here as your situation might be different from the cases we’ve had in the past.

In Belgium, you cannot reclaim your legal fees — even if you win the lawsuit. This might have changed in recent years but it wasn’t the case when we filed suit against a NASDAQ listed company in 2001. Please talk to your lawyer to get more advice.

A legal suit can take a long period of time and cost a lot of money. It will take a strain on your day-to-day business and your nerves. As you prepare for the legal suit, make sure you’ve got all your bases covered and enough evidence. In the aforementioned case, we spent more than €35,000 in legal fees and almost 4 years in various courts. We did win our lawsuit in the end.

Evidence to collect:

  • Find out when you published your text for the first time.
  • Find out when the infringer copied your text. This could be done by looking at your web server log files (if you happen to now the IP address of the infringing party. You can also search the Wayback Archive which is a digital library of the online yesteryear.
  • Copy all pages which use your intellectual property, save a digital archive of the infringers site.
  • Look at the HTTP headers of the infringing pages — this can sometimes tell you the last modification date.
  • Verify if other pages on the infringer’s site also use copyrighted text from other sources. This might indicate a large scale infringement and reaveal pattern of behaviour.
  • Check your revenue numbers to see if there is a drop since the infringer used your content.
  • Check your web traffic to see if there is a drop, too.
  • Check all the search engines you know for cached copies of the infringer’s site and also the ranking of those pages. Compare that information to your own site’s listing to see if you might have lost any visitors due to the infringing site.

Armed with all this information your lawyer should be able to put together a case.

Good luck!

PS: This article is also copyrighted. Anything you write becomes your copyright unless you expressly state that it’s not. However keep in mind that when you write something into an online guestbook, forum or networking site, your comments might become the property of the entity running that service. When you write something at work, it becomes the copyright of your employer…

Posted in EN » All, EN » General.