Copyright Law: What Search Marketers Should Know (Part 2)

By Grant Crowell , September 27, 2007

In the previous article, we covered the law fundamentals search marketers should know about online copyrights. This next article covers important tips and tactics by online intellectual property attorneys, and legal counsel for the search engines, for both protecting your own copyrighted material and respecting the copyrights of others.

A special report on search legal issues from Search Engine Strategies in San Jose, CA August 20-23.

Filing a DMCA take down notice with the search engines

When a search marketer notices that their copyrighted content is being infringed online (i.e., used without authorization) they must first determine if it's worth the effort to get it removed from the offending online publication. A publication can include all online service providers (OSP) sites featuring the infringed content, including the search engines in their own search results pages. The most effective and efficient way for nearly all situations is to start by filing a Digital Millennium Copyright Act (DMCA) takedown notice.

"The DMCA take down notice is a pretty simple and straightforward process for both us and search marketers," says Eve Chaurand-Fraser, legal corporate counsel to Ask.com, overseeing legal issues relating to search services and online advertising sales. "If you just show us the two contents – yours and theirs – and show us how they're the same, then boom, you're done."

Chaurand-Fraser offered the following tips to help a search engine quickly process your takedown request:

• Fill out the search engine's own form. All of the major search engines make it easy by providing an online form to fill out.
• Make sure it's copyright-related, and not some other business matter. (Search engines aren't responsible for your online reputation issues, bad press, etc.).
• Don't be vague. Show them exactly where the infringing content is located online, provide the URLs, tell them what your copyrighted work is exactly. As an additional help, tell them what search terms it may be showing up under.
• Make it clickable. Put the material in an electronic format, not a hard copy printout. Give them the WHOIS lookup information so they can figure out who owns the site. "We need to be able to click on it and find it easily." (Even if it is offline content, send them a picture of both your original content and the infringing content. If you have a lot of them, you can send it to them in an e-mail.

There are two things that Chaurand-Fraser warns NOT to do when sending a DMCA takedown notice to a search engine. The first is not to be argumentative or threatening. The second is not to focus on the effect it's having on your business. "We're not a court. We just handle them with our own search network." she says.

Clarke Walton, an attorney at the Walton Law Firm and former managing executive for the search optimization firm Submit Express, added these tips for properly filing a DMCA takedown notice:

• Make certain you own the copyright of whatever you are filing to take down.
• Be certain that it is actually an infringement, and not a fair use of your copyrighted work.
• Make it easy on the online service provider (OSP). Find out what their own takedown notice requirement guidelines are. Some of them prefer information to be ordered in a certain way.
• Provide a link to the offending material; include screenshots if necessary.
• If you've registered your copyrighted material (which is highly advisable to do in advance), then attach the registration certificate.
• You have to sign it under penalty of perjury. If you're wrong and are sued, you will at the very least be responsible for attorney's fees.
• Don't send bogus notices. Be certain that you are the author of the work, and the infringer is in clear violation. Don't send DMCA takedown notices out just to intimidate the OSPs, your competitors, or people exercising fair use. As an amusing example, read this expose of a business caught sending out numerous phony takedown notices to blogs critical of its business enterprise.

Preparing for a copyright lawsuit

Now, what if you decide to pursue your copyright infringement to the next level – taking the infringer to court, and collecting for damages? Eric Goldman, assistant professor of Law at Santa Clara University, director of the High Tech Law Institute, and former legal counsel for epinions.com, gave this advice for SEMs to heed before filing a lawsuit.

• Register your copyrights early.
  Goldman advises registering your copyright within 3 months of the original copyrighted work's first publication. "This is the precondition for collecting attorney's fees and statutory damages. If you're really going to have the power of getting cash out of your copyright, you're going to need to be eligible for statutory damages and attorney's fees."
• Don't be duplicitous.
  Don't go out and attempt to enforce your rights if you're engaging in copyright infringement yourself. Be sure to check all of your own online works to be sure they're not derivative or duplicated from anywhere else.
• Invest your time in protection and enforcement wisely.
  "If you do see a potential infringement of your IP, the first thing to do is don't freak out. It's actually that simple. Immediately acting on moral outrage will not typically lead to a good business decision. A lot of splogs steal my own content, and I simply don't care. Who cares if a splog is going to show up with my content on the seventh page of a search result? It's just not worth it [to pursue]; they can have it."
• Don't make assumptions.
  "Don't make assumptions about who's doing the right or wrong thing. Often times when you first suspect who is the actual infringer, there's more to the story than you may initially see. It's sometimes possible they may have received a license to the content or have gotten permission in some way or another to do what they're doing. Do your homework before you start shooting from the hip."
• Weigh the benefits vs. costs.
  "You might be better off avoiding spending on litigation, and instead get a better edge by spending on some IP protection enforcement, or invest it in more marketing."

Attorney Deborah Wilcox, partner at Baker and Hostetler and co-chair of her firm's national Intellectual Property Litigation practice, added the following preparations before filing a civil suit:

• Prioritize who to go after.
  "We've seen a lot of lawyers jump on the bandwagon of suing search engines, but you have to consider if that's who you really want in your case. Is it that important where you have to bring it to that level? Or is this really between the advertisers, which is typically the case," Wilcox says.
• Gather evidence near the time of the incident.
  Take screen shots when you first notice the infringement, since it might be hard to reproduce later. "We've had that issue with Google where we've had to send in screenshots because they would say that [the infringement] isn't happening.
• Consider using an outside source to document evidence, as a backup.
  "So you have an independent, neutral party that has seen and documented the evidence."
• Are you really losing money?
  "That's the real harm sometimes, and often it's very hard to prove and quantify. But the more you can assess all of the specific reasons, the more persuasive [your legal counsel] can be in helping you make your case," Wilcox says.

Tips for search marketers to avoid copyright infringement penalties

There is much material today on social media/UGC sites full of copyright infringements. Here are several guidelines SEMs should follow on best copyright practices:

• If you are publishing multimedia, such as a podcast or video, don't insert copyrighted material into your original piece if it doesn't clearly follow fair use practices. One of the most common things is putting in popular copyrighted music soundtracks. A large number of people mistakenly believe that because they hear this done on radio talk shows, that it's permissible for them to do so as well. Not so under the DMCA, which actually has stricter guidelines for fair use online than on traditional media.
• If you are publishing a copyrighted piece under fair use practices, quote the source. Don't include the piece in its entirety. You still have to add something to it yourself that is uniquely your own.
• If you feel you have been unfairly penalized, you can submit a counter-notice. Find out who is the designated agent or department at the OSP, read up on their counter-notice guidelines, and submit all the required information and your complete contact information.
• Keep track of all the original dates your content was published online. Do periodic backups of your Web site and save older copies in storage. Each time you do a major update to your site, register a new copyright with the U.S. Copyright Office.
• If you feel your content has been unfairly removed, challenge it. Sometimes search engines can be hyper-reactive to DMCA takedown notices when they come from a 800-pound gorilla of a business. If you know there are other businesses or individuals with legitimate uses who have suffered as you have, there may even be an organization willing to represent you in a class-action suit. (Here's one example of an online free speech rights organization, the Electronic Frontier Foundation, suing Viacom over YouTube's takedown notice for material that even parodies Viacom's media properties, which is a legitimate fair use.)

Conclusion

Search marketers' best practices include not just keeping up-to-date on copyright law, but adhering to it in your own business practice. In this day of increasing amounts of both user-generated and professionally generated online content in both traditional and Web 2.0 formats, it requires extra discipline for search marketers not be swayed into what their competitors or the pack might be doing. Being ignorant of, or indifferent to, copyright law could eventually wind you up with one or more increasingly undesirable situations: your own listings being removed from the search engines; your accounts removed by an OSP; and in the worst situation, being responsible for statutory damages.

Admittedly, copyright maintenance is going to require some work from anyone in business. But search marketers have an advantage in this area, with advances in the law and technology making it easier than ever before to track, report, and remove infringing material. Search marketers who incorporate even a basic copyrighting procedure into their own campaigns can create an edge for themselves and their clients, not to mention the personal satisfaction of getting an unscrupulous competitor banned online.

Grant Crowell is the CEO and creative director for Grantastic Designs, and a contributor to Search Engine Watch's Vertical Search column, focusing on video search topics. Grant also serves as a video production and optimization consultant, and produces documentary video content for Walking Eagle Productions.

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