However, some infringers just don’t get the hint. The work goes down and but it doesn’t stay there. Sometimes it reappears on the same server, sometimes on a new one. Sometimes it happens almost instantly, sometimes its weeks or even months later. But no matter the circumstance repeat infringers are extremely frustrating to deal with.

Fortunately, they tend to be very rare and some cases of repeat infringement are actually accidents and mistakes. However, if you do run into a repeat infringer that survives one stake through its heart, it’s time to start devising a plan for putting an end to the case quickly and moving on as fast as possible.

Why People Infringe Repeatedly

Generally, repeat infringers are rare because it isn’t worth the time and effort to go back after someone who has already shut you down once. With so much content on the Web, there’s almost no reason for a plagiarist to pick a prolonged fight with an angry copyright holder, unless they are targeting that content specifically.

Yet, a handful do. Sometimes its because spammers automate their operation so heavily it can be difficult to stop, other times it’s a technical issue or a mistake that causes the work to reappear. However, the more common causes of repeat infringers appears to be ignorance (ignorance of the law or simply thinking that the creator is gone), or simple spite.

The exception to this is in cases of outright piracy, such as file locker and Bittorrent sites. Those sites are targeting specific works, not merely trying to fill pages, and its users will work tirelessly to keep the content they want online, even re-uploading it multiple times. Unfortunately, this is a different scenario that we are going to have to talk about in another article down the road.

That being said, if there’s no reason to believe that your work was targeted initially (IE: It was used for spam sites, plagiarized in a blog or used as marketing copy) yet you are still dealing with a repeat infringer, there are specific actions that you need to take to try and bring a quick end to the ordeal.

Stopping a Repeat Infringer

Dealing with a repeat infringer isn’t easy and what you have to do depends heavily on exactly how they put the content back online. Generally, there are three ways they can do it.

1. Reupload to Same Host: This is probably the most common situation. The infringer, once their host removes the work, simply restores the files or posts themselves.
2. Reupload to a New Host: Sometimes plagiarists and other infringers will get so mad at their host they’ll move to another one and reupload the content there.
3. Counter-Notice: The DMCA provides a system by which someone who has had content removed via a takedown notice can file a counter-notice. These are exceptionally rare in cases where the notice was legitimate, but they do happen.

Your response generally depends on what route the infringer took.

If they took the first and re-uploaded to the same host, simply notify their host that the content is back up and you haven’t been given a counter-notice. Email the same contact but do not file a full DMCA notice unless specifically asked.

The reason is that you don’t want to start the process all over again. Hosts, generally, frown on this type of behavior from their users. It’s often the difference between removing a few infringing images and banning a customer and all of their domains. This is, in large part, due to the DMCA itself, which requires hosts to terminate “repeat infringers”.

However, if you restart the process, they might not remember the first infringement and merely remove the work again.

If the infringer moved to a new host, consider filing a new takedown notice with the new host. Many will try moving the content to a new host in hopes of eluding detection but, once they realize you’re still watching will move on to something else. Others may move a few more times but most, generally, will get tired of the cat and mouse game quickly.

That being said, if they don’t but the content remains at the same URL, you may want to consider filing a DMCA notice with Google and the other search engines. Though it won’t remove the content from the Web, it will at least prevent them from gaining any SEO benefit from it and causing confusion with the original works.

That way, if you do have to have to abandon the fight, at least you know the harm from the infringement is minimal.

Finally, if a counter-notice was filed, you, legally, only have the option of filing suit, which is likely very difficult. Specifically, you would need an injunction to prevent the works from being restored (or get them taken down again) and that likely is not worthwhile.

Bottom Line

Repeat infringers are, fortunately, a pretty rare breed. Most are happy to simply get away after getting caught and don’t come back for a second bite. However, those who do can be a major headache and, at times, can lead to a game of Whack-A-Mole that can be very frustrating.

Fortunately, that usually isn’t needed and you can typically shut down a repeat infringer pretty quickly. In cases where you can’t, there are means to minimize the damage they can do so their infringement doesn’t harm you more than necessary.

All in all, it’s not a problem that content creators need to obsess over but one they need to be aware of and aware of how to handle.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Monster YouTube-Viacom Copyright Battle Is Back

First off today, the three sides involved in the Viacom v. Youtube case will soon be before the 2nd Circuit of Appeals. Viacom, The English Premier League and YouTube will each have 45 minutes to make their case before the court. The lawsuit stems from a 2007 filing by Viacom, which the English Premier League and others were joined into, in which the media giant sued YouTube and its new owner Google for $1 billion for alleged copyright infringement during its early years. However, a judge in the lower court tossed the case, saying that YouTube qualified for safe harbor protections as a host. Viacom is hoping to have that ruling overturned so it can move forward with its lawsuit.

2: Bachmann Joins Voices Questioning Online Copyright Bill

Next up today, Republican Presidential candidate Rep. Michele Bachmann has come out against the PROTECT IP act, which would, among other things, require ISPs to block sites that are deemed to be copyright infringement, Bachmann is concerned that the government would be interfering with the Web and could use it as a tool of censorship. Bachmann joins the Tea Party Patriots, as well as many groups on the left, in her opposition to the bill.

3: Screenwriter Claims Copyright Infringement In ‘Hangover Part II’ Lawsuit

Finally today, the Warner Brothers comedy “The Hnagover Part 2″ has been hit with another copyright infringement lawsuit. This one is by screenwriter Michael Alan Rubin, who claims the film copies elements from his script, “Mickey and Kirin”. According to Rubin, his script is based on events from his own life, prompting him to also sue for defamation, fraud and other charges. The producers of the film had previously settled a lawsuit with the tattoo artist that made Mike Tyson’s face tattoo, which was featured prominently in the movie and replicated on one of the main characters.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 5 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Govt Cuts ‘Streamlined’ Piracy Discussion

First off today, in Australia Federal Attorney-General Robert McClelland has quietly amended a posted document for discussion to remove all references to a controversial “streamlined” system by which copyright holders would be able to gain access to information about alleged infringers. The proposal, which outlines expanding safe harbor protections to ISPs, previously mentioned such a system as a requirement for protection but, currently, the document only makes reference to the broader issue. McClelland’s office stated that the document was posted by mistake and that a clarification will be posted soon.

2: Time Zone Database Has New Home After Lawsuit

Next up today, the Internet Corporation for Assigned Names and Numbers (ICANN), the organization that oversees domain names on the Web, has agreed to host The Time Zone Database. The database was recently shut down following a lawsuit from astrology software maker Astrolabe, which sued the database’s former administrator, David Olson, claiming that there was copyrighted information in it. The database is used by many sites and operating systems, including all Unix-based system, which in turn includes Mac OSX and Linux, to help set time and adjust for time zone differences. ICANN has said that it will deal with any legal issues as they arise.

3: Labour Unveils ICT Policy

Finally today, in New Zealand, the Labour Party has released its ICT policy statement and, according to it, if elected, the party will remove the “three strikes” clause recently passed in the country and do a complete review of the Copyright Act with an eye on introducing a completely new copyright bill in 18 months. The Labour Party has been a long-standing opponent of the law but currently only holds a minority in the House of Representatives.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 5 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

If you’ve done that, then you know well just how much of a mess it is.

However, recently, the USCO put out a request for public comment on proposed changes to the directory.

The proposed changes, which include a modernization of the database, a requirement that online service providers (OSPs) confirm their information every two years and enabling electronic filing of DMCA agent information, are clearly both long overdue and crucial for the DMCA process to work well.

However, to understand why these changes are so important, we first have to look at how things are handled now and how they can improve.

How Things Are Handled Today

When the DMCA took effect in 1998, it required OSPs, if they didn’t want to risk liability for actions infringing content uploaded by users, to provide contact information for a designated agent to receive notices of copyright infringement, or DMCA agent.

However, though lawmakers put the burden of maintaining this director on the Copyright Office, they didn’t provide any funds or means to do it. As such, The USCO simply whipped up a temporary form (which, 13 years later, is still referred to as the “Interim” form) and had OSPs fill it out.

The form, which has remained unchanged saved minor modifications, has to be mailed in along with payment of at least $105. When it arrives, it is scanned and placed on the site in an image-only PDF format under the names listed on the form.

Those interested in filing a DMCA notice then have to then go to the directory, find the correct letter (which can be tough as some hosts have many names), find the correct notice (which can also be tough as some hosts have the same or similar name) and then copy the information by hand out of the PDF.

Needless to say, the process is a mess and no one is happy about it. Not OSPs, not DMCA filers and not even the USCO. The system is full of problems including that it takes a long time to get information into the directory, the information is often out of date, it is expensive to update and it is difficult to access, especially for the visually impaired.

On this site alone, I’ve been talking about these issues since at least 2006 and even wrote a similar piece to this one in 2007.

However, where that piece was theoretical, we now have a real proposal from the USCO as it aims to finally get around to improving the way the directory is handled.

The Proposed Improvements

The crux of the proposal is for the system to move away from the current paper-based system and to an electronic one. This system would accept online registrations/updates, be searchable by anyone who wanted to access it and present the required information in cleartext format, meaning it can be easily copied.

The new system would also require that OSPs confirm and update their information every two years, helping to keep the database current, and also give an easier means to alter or delete information as it became outdated and/or unneeded.

Finally, the proposed changes would also allow OSPs to designate a third party to be responsible for maintaining the information. This could help further streamline the updating process for OSPs and help ensure updated information in the database.

The one thing the system won’t be, at least not initially, is cheaper. Though the uSCO has said it’s looking at how to price it, it indicated that it would not be looking meddle with prices at first.

Still, the recommendations, over all, appear to be solid. But with the request for comment phase just beginning, there’s the possibility that it could become even better.

My Thoughts on the Proposal

Most of the changes seem to be no-brainers. The system the USCO is describing is very much like the one that should have existed back in 1998 and the fact that it has taken 13 years to reach this point is awe-inspiring.

That being said, there are a few issues that either aren’t mentioned or are potentially thorny.

First, the USCO addresses it the issue of email, saying that it believes every DMCA contact should be required to post an email to the database and that it should be displayed in cleartext format in the system. While that makes sense from a usability standpoint, it makes less sense from a spam standpoint. Though there are good spam filters out there, one of the benefits of the current system is that OSPs can set up an account and largely remove all spam filters from it, ensuring ALL mail gets through.

This could likely be mitigated by limiting robot access to the database. That, in turn, can be done with a CAPTCHA system. Such systems can be made accessible to all (or nearly all) Web users and that, in turn, can help keep the database clean of spammers and prevent DMCA notices from being lost to spam filters while maintaining an overall high level of usability.

However, the more important issue is one of costs. One of the key reasons so few OSPs take advantage of this protection is the high cost, $105 for the initial registration plus $30 for each batch of ten additional names. With the new system, other than the initial cost of setting it up, there would be almost no maintenance costs associated with it (if it’s done well). Such a high fee is unjustifiable and unattainable to a smaller admins such as many forum admins and bloggers.

The USCO needs to step in here and make the system as inexpensive as possible. Otherwise, it doesn’t matter how great the electronic system is, it still won’t do any good as most OSPs will not be listed in it.

Bottom Line

All in all, most of the proposed changes seem to be good ideas and as if the USCO is heading in the right direction. The biggest complaint I have is not with the proposal, but with how long it took for this issue to come to the forefront.

While I can understand the challenges in a government agency trying to bootstrap such a large project with no budget, it has been 13 years since the law took effect and 15 years since it was first proposed. Clearly there must have been a chance to resolve this problem sooner.

That being said, I’m still trying not to look a gift horse in the mouth and simply be grateful change is in the wind now. However, I am working on a public comment to submit between now and the end of November and I may be working with Terry Hart from CopyHype on it. If you have any thoughts or think you might want to participate, please let me know by either leaving a comment below or sending me an email.

The system works by sending a series of up to six copyright alerts to account holders who are accused of copyright infringement. The first four or five alerts are warnings but on the fifth or six alert, depending on if the ISP waived taking action on the fifth alert, various mitigation measures are implemented including limiting download speed and halting access until the customer contacts the ISP.

At no point in this process is the customer information given to the complaining copyright holder and there is an appeals process. However, the appeals process does come with a $35 fee that can be waived.

In contrast to “three strikes” laws passed in France and New Zealand, the U.S. system is far more tame with many more warnings and far gentler mitigation measures. However, that hasn’t helped the U.S. agreement, which was created as a framework and without legislation, avoid controversy.

Some have called the new system a form of “railroading” and others have said it is turning the ISPs into “copyright cops“. Many have wondered why, after years of holding fast to their position that they didn’t have to police their networks, ISPs agreed to this plan.

More importantly though, others are wondering what the system means for them, either as a copyright holder or an occasional downloader. The answers to all the questions are a bit complex but can be pretty easily explained to anyone who is willing to take a closer look.

The Aligning of the Stars

Though many commentators have expressed surprise at this agreement, the truth is that this has been a long time coming. The stars for this kind of framework have been aligning for some time, well before it was leaked they were negotiating such a deal.

While copyright holders have every motivation to seek such a deal, ISPs, it seemed, did not. Not only did the DMCA protect them from any liability, but they risked angering customers by taking any action.

However, the situation is not that straightforward and, over the past few years, ISPs have been put in a precarious position on this front. Consider the following issues:

1. Bandwidth Issues: Bandwidth is becoming a growing issue for ISPs due to increased consumption of both legitimate and illegal content. Dedicated pirates are often times the biggest downloaders and, sometimes, aren’t even customers but are instead riding on a neighbor’s wifi. There was talk even just a few weeks ago on this issue nudging ISPs to take action on piracy.
2. Conflicts of Interest: With Comcast buying NBC, you have many ISPs getting into the content business and sitting, literally, at both sides of the table. The line between distribution and content creation is not clearly defined, especially in light of partnerships the two sides have to deliver bundled services.
3. Government Pressure: Finally, in light of tougher laws being passed in other nations, the U.S. government, in particular the White House, has been putting pressure on ISPs to come up with a deal. For an industry that strongly fears regulation, this was likely a very powerful motivator.

In short, the two sides need each other (or are already one and the same) and the shadow of government intervention was all that it took to push the process along.

What Does “Six Strikes” Mean For You?

Despite the controversy and the ongoing dialog about the new system, it most likely won’t have a drastic impact on you. Just as with the iTunes Match debate recently, the actual impact is likely overblown.

For example, if you’re a smaller copyright holder or otherwise not part of this agreement, you won’t be able to send any alerts and, if you don’t pirate content, you most likely will never see one, unless your wifi is being misused.

Even if you’re a casual music or movie downloader, this agreement probably won’t drastically impact you. In fact, some even feel it could help you by giving you plenty of warnings and helping you avoid a lawsuit.

This effort is generally targeted more at diehard pirates and, even then, it is far more aimed at education and not enforcement. The mitigation steps are tame compared to those in other countries and the long series of warnings is more geared toward informing the user about the problem than threatening them.

In short, only a handful of very active priates will likely be on the receiving end of any mitigation measures and those that do will get there more because of stupidity than the actual act. After all, who would continue doing the same thing after four or five warnings?

The real change, most likely, is yet to come. Simply put, it seems unlikely that this framework is going to be the end of the relationship between ISPs and content creators and that could have a big impact on the Web down the road.

Looking Ahead to a Different Future

The real change with this agreement isn’t the number of strikes or the mitigation measures but that it happened at all. After all, other nations that have implemented such “graduated response” systems did so either through court decisions or legislation, not voluntary agreement.

In short, the most amazing thing to come out of this could very well be the Center for Copyright Information, the organization that is overseeing this effort and was founded jointly by ISPs and copyright holders.

If the parties involved can make this agreement work over the long-term, it could be a huge shift for the Internet in the U.S. This is especially important in the copyright landscape because, in many ways, this agreement is already out of date.

After all, with piracy already shifting away from easily-monitored p2p networks and toward file locker and streaming services, a trend that began as early as 2005, and it is likely that trend will only continue for a long time to come.

In short, this, in many ways, is a piracy agreement that is about five or six years too late to be on the curve. However, if it holds, it could open the doors for future agreements, which could be far more drastic and have a broader impact.

While the pact seems to be somewhat tenuous now, the external factors that brought it into existence are only going to grow in strength over the next few years, possibly driving these two sides even closer together.

That, in turn, will make future agreements easier to draft and could make them much more far reaching. A prospect that dramatically alter the Web itself.

Bottom Line

All in all, this specific agreement isn’t likely to have a drastic impact on anyone that isn’t already a part of the agreement. However, the fact that it exists, the factors that helped to make it happen and the current climate online means that there is a good chance this won’t be the last we hear of this partnership.

In short, rather than worrying about or pondering over the specifics of this deal, it’s more important to look at the fact it exists at all and what it means for the future of the Web.

After all, if the ISPs are either the same companies or closely aligned with the largest copyright stakeholders it will inevitably impact the Web in other ways. It just remains to be seen exactly how.

The change, which was first noticed on May 10th, though had been modified on May 4th, exploded across Twitter and the blogging world resulting in hundreds of tweets and prompting at least some TwitPic users to cancel their accounts and delete their photos.

Specifically, Twitpic’s revision said that users:

may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content you have uploaded to Twitpic.

This controversy caused the company to very quickly change its TOS to “clarify” the rights that its users have over their content. The terms were changed to read as follows:

You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

However, to make matters more complicated, TwitPic, the day after the second TOS change, announced a new deal with WENN, a company that sells various types of media to news outlets.

According to WENN, the deal is very limited. WENN’s CEO Lloyd Benny said that, “WENN is only permitted to distribute images posted by a very small number of celebrities, so 99.99999999% of TwitPic users remain totally unaffected by the arrangement.”

Still, this hasn’t done much, if anything, to calm user’s fears about TwitPic and the rights its claiming in its uploader’s works. Though the company says it’s taking these steps out of the interest of their users, many are seeing it as a rights grab and nothing more, especially considering the original TOS simply said, “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites. All images uploaded are copyright © their respective owners.”

However, I think that most viewers are missing the bigger picture on this issue and, while what TwitPic did is certainly worthy of attention, it’s far from the only service to make a rights grab for your work.

In fact, there are many that are far worse.

The TOS Problem

Under copyright law, as the creator of original content you retain all of the rights in your works once they are fixed into a tangible medium of expression. However, if you want to share those works, such as images, on the Web by putting them on third party services you must first grant them a limited license to use the work in various capacities.

But while this license is a legal necessity, some companies abuse this necessity and the fact that very few read the terms of service to grab far more rights than they actually need. In fact, in many corners of the Web, this is par for the course.

Looking at TwitPic as an example, their current TOS allows them to use the work in almost any capacity related to their service and to sublicense or transfer that license to other parties, who in turn can use the work in any capacity related to their business.

Though you can terminate this agreement by deleting your images, TwitPic also reserves the right to continue using them for a “commercially reasonable” time after ward and that any sublicenses TwitPic grants may be irrevocable.

In short, under the current, “fixed” terms, TwitPic can still do pretty much whatever they want with your image, including selling licenses to WENN. The only thing that really changes is that you are free to license the images yourself, basically competing with TwitPic and their partners over your own work.

However, TwitPic is just a convenient example of the problem. As TheNextWeb showed, nearly every other photo sharing company out there has almost identical language buried in their TOSes.

In short, leaving TwitPic doesn’t necessarily solve the problem and, sometimes, can make it even worse.

The Big Picture

The problem with TOSes is fairly simple and goes well beyond copyright. There’s a natural imbalance to them that can not be resolved easily.

The problem is that, when it comes to these terms, for the company it is in their best interest to ask for and get all the rights they think they can get away with. Since few people actually read the terms they are agreeing to, that is often quite a bit.

However, even if a company is being completely honest and straightforward about its terms, it needs to get the rights for what it wants to do today and the rights for what it thinks it might want to do later. That has to consider the possibility of selling the company, bringing new services online and so forth.

Unfortunately, a lot of the rights a company might genuinely need in that preparation are the same rights that one might use if they were planning on reselling or otherwise misusing the content that’s being uploaded.

For example, it makes sense for hosts to ask that the rights they get be sublicenseable because they might sell the company and need to transfer those licenses. However, such terms can also be used to sell works to third parties.

To make matters even worse, most terms of service have a clause that enables the provider to change the terms at any time, for any reason, without any notice and have you agree to it. Theoretically at least, this means that the terms you agree today could be anything tomorrow.

However, we trust our partners and providers to not abuse these rights because, in a word, it would be wrong. Unfortunately there is very little legally stopping any company from abusing their terms of service. This applies not just to photo sharing services, but everywhere you put your work on.

The Role of the DMCA

One strange side element to this, and one reason hosts (at least those in the U.S.) may be unlikely to abuse the rights they are often given in their terms, is because of the DMCA’s safe harbor provisions.

To recap, the DMCA safe harbor provisions protect hosts and services like TwitPic that receive and provide access to material uploaded by users. In these cases, as long as the host has no knowledge of the infringement, doesn’t profit directly from it, has no editorial control over it and works to remove infringing material when appropriately notified, they can not be held liable for infringement.

However, whenever a host gets in the business of re-licensing works, most likely, these protections disappear. If, for example, an image uploaded to TwitPic is an infringing work and that image is licensed out to others, it’s at least possible TwitPic could be held liable.

Though much of this is untested, YouTube’s licensing of content to outside partners is an issue of contention in its ongoing battle with Viacom, though that case deals with blanket licenses, not ones for individual works.

Still, most hosts are going to think twice before they even risk losing their DMCA safe harbors, even on just a few works, especially when there is no practical way to patrol their service and stop infringement proactively. There are many ways that abusing the TOS could go well beyond what those safe harbors protect and that, in turn, may help keep users safer from TOS abuse.

Bottom Line

The issue of overreaching terms of service is practically an epidemic online. Companies that don’t overreach on their terms are few and far between. While this doesn’t necessarily make those companies or services that do evil, it does mean that they are protecting their interests extremely well, often at the expense of yours.

There are, unfortunately, no easy answers to this problem. Though hosts could adopt Creative Commons Licensing as a requirement of using the service, that extends rights to the rest of the world as well as the host, something many won’t be comfortable with.

There is a clear need for greater simplification and clarity in TOS language, especially as it relates to copyright. Unfortunately, I don’t think this initiative is going to come from hosts as they have the most to gain from the current system.

Even if they don’t intend to abuse the rights they’re given, they don’t want too many questions about the license they force their uses to give them and why they need what they ask for.

Unfortunately, it seems that very few users are willing to ask the questions regardless.

However, the law also has a series of formalities that any site wishing to take advantage of this protection, or “safe harbor”, has to take. This includes designating an agent to receive notice of copyright infringement, responding expeditiously to remove or disable access to allegedly infringing material when notified and, perhaps most tricky of all, registering your designated agent with the U.S. Copyright Office.

All of the other things you can do easily on your own without incurring any cost. However, registering with the U.S. Copyright Office does cost a small amount of money, namely $105 for a single site. Though it isn’t time consuming or difficult, it is a step that many webmasters overlook, even if it is one that could help them avoid a copyright lawsuit down the road.

Why Register a DMCA Agent?

The DMCA safe harbor provisions were designed to protect webmasters and hosts from actions taken by their users while also giving copyright holders a simple means to remove infringing content without going to court for every single infringement.

Under safe harbor, for example, YouTube nor its parent company Google are liable for copyright infringement when a user uploads an infringing video. As long as YouTube removes the videos when notified and agrees to take additional action against “repeat” infringers, YouTube is safe from copyright liability, as per the recent ruling in the Viacom v. Google case.

However, there are also formalities that sites have to comply with in order to qualify for this safe harbor protection and one of those is to register an agent to receive notices of copyright infringement from those who might wish to report such an infringement.

The problem is that very few sites take the time to do this.

Few, it seems, are aware of the requirements and others who are might be turned away by the price tag. However, if YouTube had not done so, its lawsuit with Viacom could have turned out very differently. In short, a few hundred spent on filing a registration with the USCO might have saved YouTube millions, possibly billions, in copyright damages.

How to Register a DMCA Agent

Designating a DMCA agent with the U.S. Copyright Office is actually very easy. All one has to do is download and fill in the Interim Designation of Agent to Receive Notification of Claimed Infringement form (Yes, that is the real title of the form), fill it in and send it off with either a $105 check or money order.

You can also register multiple domains with the same form. However, that does incur an additional cost as each group of ten costs another $30, meaning that for 2 to 11 domains the cost is $135 and for 12 to 21 domains the cost is $165.

Still, the process is much cheaper than doing a full new registration for each site you run.

The only other caveat to this registration process is that you must make sure that the information remains valid and active. As such, the postal address, email, fax and phone all need to be accurate. You can update the registration at any time by filing an amended registration, however, the cost is identical to a new registration.

All in all, the process should take only about five minutes and only cost, at the most, a few hundred dollars. But the headache it can save you down the road could be many fold what you spent on it.

Who Should Register a DMCA Agent?

This question is an impossible one to answer as every webmaster needs to make their own decision here. But the question to ask is simple:

How likely is it that a user of your site will upload copyright infringing material to your server?

For a blog that gets relatively few comments, it probably isn’t worthwhile. The comments can be easily moderated and suspicious material is usually removed long before anyone else is aware of the infringement. However, a larger forum where users upload a wide variety of content that is almost impossible to moderate may want to look at designating a DMCA agent.

These issues were, previously, largely academic as few copyright holders would actually sue over a technicality like a missing DMCA agent registration. However, recent events have made the questions much more important.

For example, Righthaven, the company that represents the Las Vegas Review-Journal and the Denver Post, has made it a habit of targeting forums and other sites that have not completed all of the formalities. These sites have routinely paid thousands to settle lawsuits that could have been avoided with a $105 registration.

In short though, every site needs to determine their own risk level and see if this filing a DMCA agent registration is a good step for them. However, I think far more sites would benefit from it than have done it.

Bottom Line

The good news in all of this is that, as active as Righthaven has been, lawsuits centering around this technicality are still very rare. Most copyright holders, myself included, are just happy to have the contact information on your site. In fact, very few even think to look on the USCO site for the relevant information, that is, unless it isn’t available elsewhere.

Since the DMCA also requires you to put the information your site, most webmasters are going to skip on looking at the USCO archives and just pull the information from your domain. Simply put, even if webmasters do their best to keep the USCO information up to date, which they should, there is a tremendous delay between when registrations are received and when they are posted, making the USCO database out of date in many situations.

Still, given the risk of high damages, even with a quick settlement, it makes sense to protect yourself and your site if you feel you might be at risk. It only take a few minutes to do and, if you need help with it, it is also a service that I provide as part of my consulting services.

However, there is little reason for that, unless you are a larger host and fear you may be getting a large number of complaints per month. Most sites can easily register themselves and be their own agent without having much additional workload to fear.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Over 40,000 Does Dismissed In Copyright Troll Cases

First off today, the EFF is reporting that, in the past few weeks, some 40,000 copyright infringement defendants, mostly sued as part of “speculative invoicing” cases have been dropped due to a variety of enjoinder and jurisdiction issues. The defendants, who were largely suspected of sharing content via p2p networks and had been sued as “Doe” defendants, have had their cases dropped though they could be refiled individually. However, the business model for speculative invoicing largely requires the use of massive lawsuits to be economically viable, making the prospect of suing large numbers of copyright infringers at once much more difficult.

2: Canberra Mulls a Wider Safe Harbour

Next up today, in Australia Attorney-General Robert McClelland has announced he is making three inquires into copyright reform. The first aims to expands safe harbor protections to content providers such as Google and Yahoo (similar to how it is in the U.S) and not limiting it to ISPs and other telecommunications providers. The second aims to allow for exemptions to their anti-circumvention rules, which forbid the breaking of digital locks for virtually any reason. The final announced inquiry is a “clearly defined” inquiry by the Australian Law Reform Commission to look at the current state of the law in the country. Copyright holders in Australia have lobbied hard against the first two proposed changes, making it likely that there will be a battle over these inquiries upcoming.

3: Olympics-Sochi 2014 Mascot Gets Frosty Reception Over Copyright

Finally today, one of Russia’s mascots for the 2014 Winter Olympic Games has been accused of being a copyright infringement. Specifically, a chubby polar bear, which came in second during public voting, has been called an act of plagiarism by Viktor Chizhikov, who designed the brown bear cub mascot for the 1980 Moscow Olympics. Specifically Chizhikov said, “It’s exactly the same as mine: the eyes, the nose, the mouth, the smile, though it’s askew.” There is no word about possibly legal action, such action would be unlikely anyway, but this controversy follows another that saw a version of Grandfather Frost, Russia’s equivalent of Santa Claus, be disqualified at the last minute due to fears of him becoming property if the International Olympic Committee.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

In 2006 I wrote an article entitled “Why RSS Scraping Isn’t OK” that laid out many of the arguments provided in favor of RSS scraping and republishing and laid out counter-arguments to them.

By in large, in the years that followed that article it seems that Internet has agreed. RSS scraping is no longer a hot topic on the Web but it is also not an accepted practice by any stretch. When sites are accused of scraping they are usually shouted down and are viewed as spam bloggers.

However, a ruling from earlier in 2006 may be coming back to raise new questions about how implied licenses affect the Web. The Field v. Google case, which dealt with Google’s cache, took a look at the implied license question from a different perspective and came up with some interesting answers, namely that Field, a writer, had granted Google an implied license to cache and display the cache of his content by posting it on the Web and not taking additional steps to block it.

That ruling is now being revisited and reapplied in another case, this one dealing with the controversial copyright litigator Righthaven and the new application may impact all creators on the Web and make nearly all content copying legal.

Though I am no fan of Righthaven and their practices, this particular theory against them is very dangerous and well worth analyzing closely.

The Righthaven Case

Righthaven is a company set up by the shell corporation for the Las Vegas Reivew-Journal (LVRJ) to enforce the copyrights of the paper. The group purchases rights from the paper and then sues bloggers and other sites that have republished stories from the paper, demanding upwards of $75,000 for a settlement (though the cases usually settle for much less).

Their practice is controversial for several reasons including that they do not file takedown notices or cease and desist notices first, meaning that the suits usually come without warning, Also, the company has targeted sites with many mitigating factors including ones that only reposted small portions of the original content, were the subjects for some of the articles and, in some cases, sites who did not upload the work themselves but had them uploaded by users. The latter raises significant safe harbor issues.

One of the publishers sued was Jan Klerks, who runs the forum SkyScraperCity.com. A user at the forum posted a LVRJ article and Righthaven has sued Klerks for copyright infringement.

Initially, the court issued a default judgment against Klerks when she failed to respond to the suit but Klerks is now requesting the suit be vacated (PDF) on multiple grounds, including the following:

1. Fair Use: Claiming that the copying was a fair use.
2. De Minimis Copying: Meaning the copying was so small and technical as to be non-infringing.
3. Implied License: Claiming that the LVRJ, by their actions, granted an implied license for the reuse of the content.

It is the last argument that has gotten the most interest and is the one I’m focusing on today In the filing, Klerks argued that several actions the LVRJ took essentially gave her user (or anyone else) permission to copy. Those actions included:

1. Using Sharing Services: The LVRJ uses social media buttons and other tools to enable users to share links to stories.
2. Not Disabling Copy/Right Click: The site enabled users to right-click and otherwise copy content, not taking any steps to block it.
3. Posting the Work For Free and Making Available in Google: The article in question was still available for free on the LVRJ site and is searchable by Google.

Interestingly, the motion does NOT mention several very clear potential arguments that likely apply including DMCA Safe Harbor protection, which Klerks likely qualifies for as the host of the forum, or jurisdictional issues as Klerks is from Illinois and was sued in Nevada.

Still, the implied license argument has drawn a lot of attention from all over the Web and rightfully so. To support that argument, Klerks cites the Field v. Google case, revisiting the case in a very different light.

The Field v. Google Case

In the Field v. Google case, the court ruled that Google, among other things, had an implied license to store and display caches of Field’s content for several reasons, the biggest being that Fields was aware of the robots.txt standard for blocking archiving and the potential use of meta tags but failed to do either, therefore, according to the ruling:

Thus, with knowledge of how Google would use the copyrighted works he placed on those pages, and with knowledge that he could prevent such use, Field instead made a conscious decision to permit it. His conduct is reasonably interpreted as the grant of a license to Google for that use.

This ruling was somewhat unusual in that copyright law normally does not place any requirements on copyright holders to try to stop copying before a copy can be considered an infringement. However, the court also found in this case that the cached copy was transformative enough to be considered a fair use and that, even without this license, Google’s use would not be an infringement.

(Note: More about the verdict from the EFF)

Still, it is easy to see why Klerks would cite this case in her argument on implied license but the implications if this argument is successful could be very severe for anyone who publishes content online.

Analysis of the Argument

Personally, I don’t think Klerks’ implied license argument is going to take flight. Even though there are some similarities between her case and the Field case, there are several critical differences when it comes to the issue of direct infringement:

1. No Industry Standard: First, there is no industry standard akin to robots.txt for blocking human copying. No right-click scripts and other anti-copy protections are nowhere near commonplace and they disable other, useful features a webmaster may wish to enable. Comparing the two is a tremendous stretch.
2. Copier is not Passive: In the Fields case, the plaintiff did not object to the initial copying and the cached version is an automated process initiated by a visitor at Google, Google is passive in the process. Reposting a work on the Web is not a passive process that the person doing the copying has to initiate.
3. Weaker Fair Use Argument: Though the fair use argument should be weighed separately from the implied license/direct infringement issue, such copying and pasting is far less transformative than Google cache and, generally, is capable of replacing the function of the original. This, inevitably, is weighed into the ruling to at least some degree.

Also, Klerks’ argument regarding the sharing buttons seems a bit of a stretch as well. These buttons enable the sharing of links and not the whole content and other buttons, such as the email button are not for posting the content on another site, but rather, sending via a private means of communication.

In short, many legal scholars feel that the Field case was a bit of a stretch on the implied license issue and this argument seems to take the Field ruling and stretch it even farther, likely past the breaking point.

However, the honest answer is that one does not know what the court will decide and, as with fair use issues, courts are notoriously erratic. Attorney Eric Goldman said it best when he indicated that there is no way of knowing if an implied license exists here and, if one does, what it covers.

In short, even if an implied license does exist, it may not go as far as Klerks wants or needs it to. Instead of covering republishing on the Web, it may only cover sending to one or two people or posting to a some other limited use.

Until the court rules, we simply will not know.

In the meantime, we are faced with the possibility, no matter how remote, that courts could rule that posting a work on the Web is the same as giving an implied license to copy and republish it freely, something that could all but eliminate copyright protection for many Web publishers.

Take Action Now

Even if the argument is not likely to succeed, it has opened up a Pandora’s box and created uncertainty that has to be addressed. In 2006, when dealing with RSS scraping, I encouraged people to not take any chance and license their feed using a Creative Commons or other applicable license.

This advice now stands, more than ever, for content on the Web too.

The reason is quite simple, any implied license is trumped by an actual license. This is because implied licenses, by their very nature, are only for cases where an actual license has not been granted or doesn’t exist. So, even if the court does rule that publishing grants a broad implied license, any actual license would have to be followed first.

This is a big part of why it is so important to license your works correctly. Not only does it prevent misunderstandings, but it also prevents you from accidentally giving away more rights than you intended via an implied license.

In short it is best to decide your license for yourself and not let the court choose and hope it picks the right one.

Bottom Line

If you publish content on the Web, this affects you. It is that simple. As I said before, I am no fan of Righthaven or their tactics but this is an argument against them that could have very far-reaching and very negative consequences for almost everyone who posts content online.

Granted, the odds of the argument succeeding (at least to the extent Klerks needs it to) seems very slim but it does add another reason for webmasters to pay close attention to their licensing practices and work to make them clear.

In short, if you’ve been relaxed about licensing your content, now is the time to change that. It’s better to take such action now than possibly get caught off guard by this, or any other, ruling that affects your rights.

1: Viacom vs. Google Court Fight Heats Up

First off today, the Viacom/YouTube lawsuit may be coming to a head. Both sides have filed papers indicating their plans to seek a summary judgement, asking the judge to rule on the case without going to a full trial. Viacom sued YouTube and its owners Google accusing them of widespread copyright infringement for Viacom-owned clips that appeared on the site, including some allegedly uploaded by YouTube employees themselves.

2: Law Firms Investigated over Copyright Cash Demands

Next up today, the controversial British law firm ACS:Law is being investigated by Solicitors Regulation Authority in the UK following complaints from consumers. The law firm earned a reputation for sending out notices for copyright holders to alleged file sharers demanding £500 to avoid being sued. Consumer rights groups are hopeful that the investigation will put a stop to what they call “bully boy” tactics.

3: A Possible Solution in the Amendment of Copyright Act

Finally today, with all the harsh words and feuds that have emerged from the discussions and negotiations over royalties in the changes to India’s copyright act, it seems a compromise may be on the horizon for at least one element. The division of royalties for movies may be left to contract negotiations rather than being set by law, ending a battle over what percentage musicians, producers, etc. should be paid for the content they contribute.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.