Protecting Against Infringement
The best protection against copyright infringement is constant vigilance. Whether you have a publisher or are self-published, you should perform an Internet search for your name and your book titles at regular intervals. You also should set up Google Alerts with the same information (www.google.com/alerts).
What action can you take when you find some or all of your novel published on a file-sharing site, a fan site, or on someone’s personal blog? It depends:
- If your copyright remains with your publisher, you must review your publishing agreement to see who has the right and/or obligation to take action against infringers (unfortunately, some agreements are silent on this point). Typically, the publisher has the right to enforce your copyright – as well as the resources – so you should notify it of the infringing conduct and let it take over, at no cost to you.
- If your work is out of print and your rights have reverted; or you are self-published; or your publisher refuses to take action, you have the burden of enforcement, using the mechanism of the Digital Millennium Copyright Act (“DMCA”). Under the DMCA, the owner of a work may notify the “designated agent” of the web site’s Internet service provider (“ISP”) about the offending material. Once the service provider’s designated agent has been notified via a “Takedown Notice,” it is required to remove the material. In return, the service provider is granted complete immunity from liability for copyright infringement, (but only if it has a designated agent). The Register of Copyrights has a directory of these agents available for inspection at copyright.gov.
Unfortunately, the definition of “ISP” in the DMCA is very broad, and has resulted in much litigation. Web “hosts” clearly are ISPs (hosts are companies that provide Internet connectivity to web sites), but the term also has been interpreted to include search engines, auction sites, social media, portals such as newspaper sites, and individual web sites. If the infringing material is on a web site that allows members or subscribers to post material without editing, the ISP can be that web site, not the host of the web site. But if the owner or publisher of the web site posted or edited the infringing material, the correct ISP to notify is the host of the offending web site (and the offending web site owner has no immunity from liability).
Many reputable sites that allow posting of content by members or the public have a “Copyright Policy,” “DMCA Policy” or similar wording listed on the site – usually noted in the site’s footer, it’s “About” link, or its “Terms and Conditions.” If your content is posted on one of these sites, follow the procedure set forth; if no procedure is listed, follow the procedure at http://publishlawyer.com/forms/dmca-takedown-notice/.
If you can’t get find a designated agent, can’t get the ISP to take down the material, or you want compensation for the infringement, it’s time to consult a publishing lawyer.
You can’t file a copyright infringement lawsuit, however, unless you’ve first registered the copyright with the U.S. Copyright Office. Typically, this would have been done by your publisher (or you) at first publication, but if it hasn’t, you’ll have to do it now.
If your registration occurred before the infringement or within three months of its first publication, you will be entitled to receive attorney’s fees and “statutory damages” – the right to compensation without the need to show economic loss. Your copyright registration date is the date your material and fee arrive at the Copyright Office, regardless of how long it takes them to process the paperwork (currently about nine months unless you pay for expedited service).
Most of the time, copyright infringement cases are settled out of court. A publishing lawyer can advise you and send demand letters on your behalf.
It is worth repeating that the Internet is international, and foreign ISPs have no obligation to comply with the DMCA. Many countries have signed international and bilateral copyright treaties giving American authors the right to make infringement claims locally, but court enforcement – especially in Russia and China, the major violators – is difficult, expensive, and often futile.
© 2017 Daniel Steven