This past Tuesday, March 30, 2010, I gave an hour-long webinar on copyright entitled “Copyright Basics for Creative Professionals, Media Companies and Content Archives”. The presentation was presented by Digimarc and ImageSpan and was presented to about 70 users.

The talk covers the following elements:

• Who should copyright their work;
• What a copyright protects;
• Where do you register your copyright;
• When you post your work online, the dangers you should be aware of;
• Why you should follow good licensing practices; and
• How you should respond to infringers

As you can see from the title and the topics, it is a fairly basic overview of copyright with a few interesting elements for a more web-savvy audience.

As a warning, there were some minor problems with the recording. First, you may have to turn up your volume as, for some reason, I was coming in fairly soft. Second, we did have to rush toward the end as there was a lot to get through and the presentation ran behind.

Still, for those who are interested in a quick overview of copyright law and how it applies on the Web, this might be a very good introductory course.

You can view the webinar in its entirety below or, if you wish to download it, you can get either the MP3 or the video file here.

However, the Copyright Advisory Network, a part of the American Librarian’s Association, has aimed to help fix that by creating a simple Copyright/Public Domain Slider.

It is a great tool and it illustrates how complicated and convoluted copyright law has become thanks to the patchwork of changes that have taken place. It becomes clear when using this slider, especially when you look at the asterisks and other caveats, that there is a real need for simplification of copyright law in the U.S.

To make matters worse, the slider only covers some of the potential situations. If you take a look at the table provided by Cornell, you can see that there are many possibilities not covered by the slider.

Still, the slider is a great tool for most situations and serves as a great introduction to the public domain and when works expire.

photo credit: gruntzooki

Whenever I work with Webmasters and bloggers to help them file DMCA notices to get their content removed from copycat sites, they inevitably have a lot of questions about the law and how to use it. Though I am not a lawyer, I do my best to answer them.

However, to save time and effort, as well as help those who didn’t want to ask, I’ve compiled a collection of FAQs about the process with my answers to them.

Hopefully this FAQ collection will answer most of your questions about the DMCA process and, if it doesn’t, please feel free to ask your question in the comments below so it can be added.

What is a DMCA Takedown?

The Digital MIllennium Copyright Act of 1998, among its many parts, granted a “safe harbor” to Web hosts and search engines for infringement perpetrated by their customers. This means that hosts can not be held liable for any copyright infringement that their customers perform so long as they meet certain criteria.

One of the criteria is that they have to “expeditiously” remove allegedly infringing material when properly notified. A DMCA notice, also known as a DMCA takedown, is simply a letter that fulfills the requirements of the DMCA demands the removal of the work either from the search engine or the host.

Hosts, in order to preserve that safe harbor, need to comply with properly-filed DMCA notices.

Should I file with Search Engines or Hosts?

There are different schools of thought here. Some feel that, by filing with the search engines and waiting to file with the hosts until the search removal is complete, you can more completely wipe out an infringing site and prevent it from coming back.

However, search engines are slow to respond. Google can take several weeks and has complicated notification requirements. The quickest route is almost always to file directly with the host and have the work removed directly. It is also by far the easiest way, requiring just one notice, as opposed to five or more the other route.

Still, in most cases the decision is up to the filer. However, if the site is hosted in a country that does not have a takedown provision, search engine removal may be the only option.

I Am From Another Country, Can I Use the DMCA?

Yes. The DMCA allows all copyright holders, no matter where they are located, to use the takedown process. THe jurisdiction of the law is based upon where the site or search engine is hosted and the vast majority of both are within the U.S.

I have seen cases where a British man used the DMCA against an Australian plagiarist simply because the plagiarist hosted the infringing site with the U.S.

What if the Site is Hosted in Another Country?

The procedure for requesting a takedown was created by a WIPO treaty that mots countries are signatories to. However, many have not fully implemented the treaty and, as such, have no such procedure.

However, most countries that host a large number of sites, including the whole of the EU and Australia, have a process in place that functions very similar to the DMCA.

In many cases, sending a DMCA notice will work, even if the host is foreign. However, even hosts in countries without takedown procedures consider copyright infringement to be a violation of their terms of service. Therefore, even in those cases, you can often file an abuse report and secure removal of the site.

Can they Get the Work Restored?

One who has a DMCA notice filed against them has two choices for restoring the site. First, they can move to a different host and restore the site that way. Second, they can file what is known as a counter-notice and secure the return of the work.

A counter-notice is much like a DMCA notice but in reverse. Where a DMCA notice claims that the work is infringing, the counter-notice claims that it is not and demands that it be restored. Unless the person who filed the original notice files suit and secures an injunction, the work will be reposted after a waiting period.

Counter-notices, however, are extremely rare, especially if the DMCA notice was clearly justified. Such notices open up the person filing them to a slew of legal problems and, in general, it is easier to just move on.

Most cases where a site is restored involve moving the content to a new host.

How Many Should I Report?

There is no set answer to this. You can send as many or as few as you want. Just remember that any you don’t include you can always file another notice regarding later, in the event that the entire site isn’t taken down.

Still, most DMCA notices include between 5-10 items whenever a large list is involved. Some will include far fewer and others will do one item per notice. However, for the most part, it’s better to find a balance.

How Long Does it Take to for a Response?

The answer varies. Some hosts will act in less than 24 hours, others will take over a week. The more typical timeframe is between 48 and 96 hours.

However, it is important to note that hosts will typical secure removal of a work and then wait a day or two before sending an email to confirm the takedown. The reason is that they want to ensure that all cached copies of the work are cleared to avoid any confusion about the work still being up.

Will the Host Shut Down the Whole Site?

This depends on the circumstance and on the host.

If the site is largely composed of infringing material, such as with a spam blog, the host is likely going to just cancel the whole account. If the infringing work is just one or two items in a larger site, they will likely have owner of the site take down the specific items or, in some cases, surgically remove the works themselves.

Some hosts, such as Myspace, are known for surgically removing infringing works and almost never shut down an account on DMCA complaint. Others, such as iPowerWeb, frequently shut down whole sites.

To improve the odds of a domain being shut down, if you have more items to include in your DMCA notice, do so. If you reported the site once and the works were surgically removed while other infringing items remain, report the other works in a second notice.

Under the DMCA, hosts are required to ban repeat infringers from using their service.

Can I Get Into Trouble?

In order to file a DMCA notice you need to swear under penalty of perjury that you have a “good faith” believe that the work is infringing and that you are the copyright holder or an authorized agent.

If you file a knowingly false DMCA notice there are many potential legal consequences, some of them very dire. However, there is much debate and even conflicting rulings about what constitutes a “good faith” belief and where the bar is placed for meeting that test.

Generally speaking, though I am not an attorney, if you stick to cases of clear-cut copyright infringement such as scraping, plagiarism, etc. and avoid cases that raise fair use issues, the risk of trouble is relatively low.

Sadly, even cases where the DMCA notice was clearly false rarely result in as much as a counter-notice due to the legal uncertainties. This has enabled much of the DMCA abuse we see and has contributed to the reputation of the law as being one used to silence critics or stop fair use.

Is There Anything Else?

The DMCA is a powerful tool and should be used carefully. Be responsible with your plagiarism fighting and be cooperative with hosts as much as possible.

If you have any questions, feel free to write me either via the contact form or sending me an email to jonathan at plagiarismtoday dot com.

It was a busier week for WordPress news but the biggest story was the one that didn’t happen. We were braced for the release of the new version, 2.5, on March 10 but the release has been delayed until closer to the end of the month.

You can listen to the podcast by visiting here.

We look forward to returning soon with another episode focused back on WordPress itself and the tools that make it so useful!

In honor of that, I wanted to spend a few hours today getting back to basics as well. This is both for the benefit of long-time readers and for new readers as well as anyone on the Web that need this fundamental information.

To help with that, I’m going over ten basic copyright facts that everyone who creates or uses copyrighted goods should know.

So let’s take a moment to review some copyright basics and, perhaps, learn a few new things along the way.

Ten Facts About Copyright

In order to speed up this process and make this information easier to digest, I’ve broken down the facts into ten short explanations with links to more information if desired.

1. Copyright Is Immediate: Copyright in a work is created once it is fixed into a tangible medium of expression. Though added legal avenues can be opened by registering the work with the Copyright Office, there are no formalities needed to obtain copyright in a work, including placing the copyright symbol.
2. Copyright Protects a Set of Rights: Copyright is not just about the exclusive right to copy, it also provides the copyright holder with a sole right to publicly display a work, to publicly perform the work and create derivative works. Doing any of these things without the permission of the rightsholder is likely to be an infringement.
3. Copyright Lasts a Really Long Time: In the United States, copyright in a personal creation lasts the life of the author plus seventy years. In corporate works, the term is a flat 95 years. After that term expires, the work passes into the public domain.
4. Copyright Does Not Protect Many Things: Copyright protects the expression of an idea, not the idea itself. It also, typically, does not protect titles of a work, systems, concepts and anything that has not been fixed into a permanent medium. Finally, all works that are in the public domain are not protected by copyright and can be used freely.
5. Not All Copying is Prevented: Though copyright gives the author of a work the sole right to produce copies, not all copying is prohibited. Fair use allows limited copying of a work “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”
6. Fair Use is a Defense, Not a Right: Legally speaking, fair use is not a right, it is a defense against a copyright infringement suit (see footnote 20). Fair use rights do not exist and a whether or not a use is fair or not can only be determined conclusively by a judge/jury after the case has gone to the courts.
7. Work For Hire is Limited: Though, in most cases, copyright in the work transfers to the author, in some cases it can transfer to the employer. Those cases are called “works for hire” and are limited to employees of the company (as recognized by Federal guidelines) and contractors in a limited set of fields that sign a work for hire agreement before the work is created. Most contract work is not a work for hire.
8. It is Possible to Remove Many Infringing Works on the Web: If you find that your work is being misused on the Web, you can have it removed by filing a DMCA notice with the host. Alternatively, you can file a notice with the search engines and have the the content removed from their indexes. This can be done without an attorney or registering a work.
9. Benefits of Registration: Though registering your work with the U.S. Copyright Office does not earn you any new rights to your work, it is a prerequisite to filing suit for infringement in a Federal court, it enables you to collect attorney fees and statutory damages, serves as a public record of the copyright and services as prima facie evidence of ownership.
10. Poor Man’s Copyright is a Myth: Finally, many claim that you can protect a work by mailing it to yourself and using the postmark as proof of copyright. This does not work and no provision of the law exists to make it possible. So-called “Poor Man’s Copyright” is not a substitute for registration.

Notes

Please note that all of the links above point to references on the U.S. Copyright Office Web site. Thus, it is crucial to know that all of these facts are based solely in U.S. law and may or may not apply to other countries.

As always, I am not a lawyer and nothing on this site should be taken as legal advice. If you need legal counsel, seek out a qualified attorney.

Conclusions

Though this information may seem very basic to anyone who has read this site for a very long time, it is important to note and to keep it close to heart.

These facts, and others like them, are the foundations upon which all of the work on this site is built and, without a robust understanding of the fundamentals, there is no way that one would be able to adequately protect their works or avoid copyright disputes down the road.

To new readers of Plagiarism Today, I hope that this helps you gain the fundamental knowledge that is necessary to understand and work with the other tools and methods taught on this site.

I look forward to building upon these facts to create a much more robust understanding of the confusing and difficult copyright climate on the Web.

Image Credit: Copyright Exposed image from the U.S. Copyright Office and is licensed in the public domain.l