Protecting Your Work from Electronic Pirates

by Charles Petit

Electronic publishing is relatively easy, and getting easier all the time. Unfortunately, that means that electronic piracy is also relatively easy, and getting easier all the time. However characterized, electronic piracy is theft of an author's intellectual property.

Whether the piracy is a sneaky unauthorized reposting of a work on an obscure webpage, a brazen corporate theft through unauthorized reissue of a work on a CD-ROM, or something different, authors can take steps to protect their rights. However, a knee- jerk "stop it now or I'll sue!" is not necessarily the best reaction. A writer's objective is to stop the infringement, not just make life difficult. This results in one of two goals:

• Getting paid for the reprint. Once paid for the rights used, there's no infringement any more, is there?
  
  
• Removing the work. This may be required by exclusivity clauses in the original publication (such as a one-year option on electronic rights), or if the work appears in an inappropriate forum (such as a piece of erotica used as an example of the degeneracy of American culture on a fire-and-brimstone fundamentalist crusade site).

Step One: Awareness

Regardless of the specific goal, the first step in dealing with electronic piracy is always awareness. It is impossible to combat unknown piracy. Authors should periodically search the internet for their work, both to find unauthorized copies on the Internet itself and to find references to other unauthorized copies, such as CD-ROMs. Moira Allen's article Help! Someone Stole My Article! provides an excellent outline of methods and benefits of doing these searches.

Step Two: The Complaint

The second step in combating electronic piracy is a complaint to the apparent infringer. The complaint should be a polite, professional note (such as Letter 1 at the end of this article) informing the infringer of the infringement. Sometimes the infringement is inadvertent, and may actually result in a professional sale of the material. For example, one writer discovered that one of his short personal pieces appeared on several "inspirational" websites, without attribution. The writer sent a polite email to each site administrator claiming the piece as his. By being polite, the writer turned six infringements of his copyright into sales and got his name out in a new market. The writer believes that these site administrators were just naive -- they each took something they found posted without attribution and assumed it was okay to use.

There is one exception to the "be polite" rule: blatant, admitted piracy. Another writer found a site that posted one of her short stories, including attribution, without authorization. The site admitted on its main page that most of its content was not authorized by the writers! A polite note is not going to do much good with people who show such blatant disrespect for the writer in the first place. There's no need for invective, but jumping right to a demand for compensation and removal of the posting is appropriate.

Remember that the copyright holder is the one who should complain. If the original publisher purchased all rights, or the copyright itself, inform the publisher and let the publisher take action. After all, the publisher may have authorized the reuse! In any event, always inform the original publisher of an infringement. If that restaurant review from last Thursday's Herald is on a particular website, other material may have been taken from the Herald without permission -- and the Herald will certainly want to look.

Step Three: Contacting the Infringer's ISP

Unfortunately, some pirates will not pay heed to a shot across the bow, however politely worded. That means it's time to complain to someone bigger: the ISP or other service or distribution provider. The complaint should still be professional in tone, although perhaps less forgiving (Letter 2).

The electronic world does not always make it easy to determine who the ISP really is. Sometimes it's obvious, as in the case of GeoCities or AOL; sometimes it's not. One solution is to use NSI's database for US-based commercial URLs or ARIN for numeric or non-US addresses. If the "real" home domain's home page doesn't include contact information, the Register of Copyrights maintains a useful database.

Some ISPs -- GeoCities/Yahoo!, among others -- claim that they will not take any action without seeing the certificate of copyright registration. Don't believe them. This is really just lawyerese for "we won't resolve disputed copyrights." The notice of infringement in Letter 2 (referring to 17 U.S.C. section 512) makes the ISP responsible once notified of the infringement in writing, and is signed "under penalty of perjury." The copyright need not have been registered at all -- copyright registration is required only for a lawsuit, and late registration only limits the remedies available in court. Regardless of the ISP's protests to the contrary, the ISP has certainly messaged the account holder with a "just what is going on here?" query, if not more.

Then there's the question of how to send the message. If the only available contact information is email, use it -- but immediately print the outgoing message and sign and date the printout. Hopefully, the available contact information will include a fax number and/or snailmail address, which are much better than relying on email.

This general approach is appropriate for any electronic piracy, ranging from an email newsletter to a huge, internationally known database of reprint articles. But what if it doesn't work? That's when it's time to consult a lawyer who practices copyright and publishing law. Some organizations, such as the National Writer's Union, will provide some assistance to their members with piracy problems, but that help is of widely varying quality and aggressiveness. A few other organizations, such as Volunteer Lawyers for the Arts, will also provide assistance, but they're overwhelmed with requests.

Dear [Sir/Madam]:

On [date], I noticed that your [site/email newsletter/electronic product] [exact name and URL, if available] included an [attributed/unattributed] copy of my copyrighted [story/article/ review] [writer's title]. According to my records, I have not authorized this use.

Please contact me immediately so we can work out either an appropriate agreement for this use or an agreement to terminate this use.

Dear Sir or Madam:

A webpage hosted by your service ([full URL]), retrieved [date and time], is infringing upon my copyright in [title]. I have attempted to resolve this directly with the account holder without satisfaction. Please remove the referenced page from your service and take other appropriate action against the account holder to prevent future infringement.

Pursuant to the Digital Millennium Copyright Act, this letter serves as actual notice of infringement in the event of legal proceedings. The information in this notification is accurate, and under penalty of perjury, I state that I am the owner of an exclusive right infringed by the specified URL.

For More Information:

NSI

http://www.nsi.com

ARIN

http://www.arin.net/whois/arinwhois.html

Register of Copyrights

http://www.loc.gov/copyright/onlinesp

Any legal commentary contained in this article is general commentary only. Do not take it as legal advice for your situation or as an attorney-client communication.

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