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Copyright Law: What Search Marketers Should Know (Part 1)

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Search marketers will almost certainly run into copyright issues at some point in their careers. They may be the victim, finding their own optimized content duplicated without permission and showing up in targeted search results. Or they may be an infringer, stealing copyrighted content from others and finding themselves subject to penalties by the search engines and the courts.

There are some legal fundamentals and procedures that search marketers should know about to protect copyrighted material online and prevent copyright infringement.

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

What's a copyright (and copyright law)?

The legal definition of a copyright according to U.S. law applies to "an original work of authorship fixed in a tangible form." It is a set of exclusive rights regulating the use of a particular expression of an idea or information. In basic language, its literally "the right to copy" an original creation. The owner of a copyright has the means to set limits on how the copyrighted work is exhibited in both commercial and non-commercial use, and require all others in the jurisdiction of the U.S. to adhere to those limits under penalty of law.

Copyright registration for search marketers

Registration of an online work for copyright is provided by the federal government at the U.S. Copyright Office Web site. It provides a documented, legal notice of protection for the registered owner of the work, which may be displayed with the copyright symbol of "©." While registration of a copyright is not a requirement for legal protection of a work, it is highly recommended should one find themselves in the position of attempting to collect damages from the infringer, not to mention court costs and attorney's fees.

A work must meet the following criteria to be considered enforceable by copyright law:

  • The work must be an "original work of authorship." This means that it must be something that can stand out independently and not be entirely derivative of another work.
  • It must be submitted by the actual owner of the work. This can be either be the original author of the work (the "author" being the creator, or the creator's employer in work-for-hire situations), or the beneficiary of transfer of rights by the author.

Applications for a copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works." The classification with the Copyright Office for registering online works falls under the larger category "Literary Works." For SEMs, some examples of online works that SEMs can file individually include:

  • A Web site
  • A digital presentation or presentation series (Recommended for conference speakers and online trainers)
  • Multimedia series (podcast and video archive)
  • Content displayed on third party sites

The fee for registration is $45, and requires filling out and submitting Form TX or Short Form TX, along with a copy of the online work. The Copyright Office accepts online works saved on a popular removable media format, such as CD/DVD. The application process is not yet virtual, but is expected to be is moving towards that in the next few months.

Copyright infringement online

Copyright infringement (aka "copyright violation"), as defined by Copyright Law of the United States of America, occurs when a person (i.e., the "infringer") uses someone else's copyrighted work without their permission.

Online copyright infringement is defined in the Digital Millennium Copyright Act (DMCA), established in 1998 and gone through several enhancements since, as the unauthorized access and/or copying of a copyrighted work. The most important section for SEMs to pay heed to is section 512(d), which states that online copyright infringement applies to "hyperlinks, online directories, search engines, and the like."

The mentality during the early years of Web content was that because it was so easy to copy (i.e., "steal"), it was thought it could be treated as a permissible exception to the rules of copyright law. The reality is, copyrights are just as enforceable and punishable with online works as anywhere else, and harsh civil and criminal penalties may apply for infringers found guilty of copyright law.

While a much greater degree of tracking, legal clarification, and enforcement is in place to expose online copyright infringement, it is still very common and taking on new forms as new technologies and online publishers emerge.

"People need to understand that for most Web site content on the Internet– original articles, text, videos, music, images, etc. – somebody probably owns the copyright to that content." explains Clarke Walton, trademark attorney for the Walton Law Firm and former managing executive for the search optimization firm Submit Express.

Cease and Desist (C&D) Letter – the first step

A Cease and Desist (C&D) letter can actually be the most effective way of dealing with an infringement problem that is not significantly affecting your own search market performance or brand.

C&D letter – the advantages:

  • It requires the least amount of effort. It can be as simple as an e-mail sent to the alleged infringer with a notification of the copyrighted work to be removed.
  • It can be created and sent in-house without requiring any legal assistance.
  • Most of the time it is successful, and requires no further action.

C&D letter – the limitations:

  • It won't immediately affect the listings in the search results. Even when the offending material is removed, it still shows up in the search engine's database until it re-spiders the infringing site and updates its search index.
  • Sending this letter from your own company does not carry any legal authority in itself.
  • It won't force an immediate response. In some cases, it may take some back-and-forth with letters and phone calls, and sometimes lawyers get involved and it takes a little longer to pull together.

The DMCA takedown notice – further protecting the online copyright owner

The DMCA takedown notice is the legal procedure for a copyright owner to have infringing material removed from an online publication. It was created as a means for copyright owners to easily file infringement claims without requiring the services of an attorney, and for online service providers (OSPs) hosting the alleged infringed content to have a proper process of action that would protect them from liability.

The DMCA is fully enforceable by law, with civil suits able to be filed in federal court for both compensatory and punitive damages. More egregious cases be subject to criminal liability, especially for the purposes of commercial advantage or private financial gain. How much? According to the law, up to a $500,000 fine or up to five years imprisonment for a first offense, and up to $1,000,000 or 10 years imprisonment for subsequent offenses.

Walton explains the importance for SEMs to know the role of the three parties involved in a DMCA take down notice: the copyright owner, the OSP, and the user, a.k.a. the alleged infringer.

"The process works like this: The copyright owner first finds a use of infringement on the Internet somewhere. The copyright owner then files an online takedown notices with an OSP, who is the middleman. The OSP, which is showing that content or causing that content to be shown, will remove the content immediately," explains Walton. "Then the user, or infringer, has a chance to respond to the notice. If there isn't a response, then the content stays offline. And in most cases where a proper DMCA is filed, there isn't going to be a response."

According to Walton, copyright owners like taking the DMCA route for three reasons – it's easy, fast, and cheap. "It's one of the easiest legal procedures you can ever file. Most of these complaints for one infringement are less than 2 pages long. Its fast: most of the results happen in less than 24 hours. And it's really cheap: there's no litigation, court costs, or filing fees. Even to file one of these, the only cost is your own time in preparing it or hiring your own copyright lawyer to help you file these."

"OSPs like the DMCA because it provides immunity for them," says Walton, referring to DMCA's Title II, Online Copyright Infringement Act, which allows OSPs to block and remove infringing material from their systems altogether. The DMCA also provides legal shelter for cooperating OSPs, preventing them from being sued for damages by the copyright owner for the online copyright infringement appearing on their site.

Where to file a DMCA takedown notice

While copyright owners have traditionally used cease-and-desist letters or DMCA letters against alleged infringers, search marketers can benefit more by filing a DMCA takedown notice with the middleman – the online service provider (OSP) featuring the content.

Sites that qualify as OSPs in the eyes of the federal government include:

  • Search engines. "Google, for example, they have a different DMCA takedown service department for each of their services – one for organic results, one for paid results, and for AdSense," says Walton.
  • Web hosts (The hosting company for the site can be found in a WHOIS lookup of the domain)
  • Most user-generated content (UGC) sites
  • Old school Web sites, like discussion forums

"There's a list of OSPs and definitions that is published right at the U.S. Copyright Office's Web site," Walton says. "You'll see literally thousands of companies that have assigned their own agents to receive these takedown notices. If you're thinking of filing one, the list at the U.S. Copyright Office's Web site is a good place to look for the contact information."

How to file a DMCA takedown notice

In order to have an allegedly infringing Web site removed from an OSP's network, or to have access to an allegedly infringing Web site disabled, the copyright owner must provide notice to the service provider with the following information (as per the guidelines stated in the DMCA (Sections 512 c & d):

  • The name, address, and electronic signature of the complaining party
  • The infringing materials and their Internet location, or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials
  • Sufficient information to identify the copyrighted works
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials
  • A statement that the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner

The limitations of the DMCA

Walton notes that there is a downside to the DMCA for some copyright owners and OSPs. "It's a real burden on a business to deal with these." Some OSPs, especially search engines, "are frequently dealing with takedown notices that don't comply with the law, and can become a volume of frivolous paperwork and lawsuits," he said.

There are other limitations with a DMCA complaint:

  • It cannot go outside of the United States. OSPs operating outside of the U.S. are not in the legal jurisdiction of the DMCA, and therefore aren't required to abide by it. "In this case, I like to instead serve search engines, because I can cut off the traffic," says Walton.
  • A DMCA does not involve collection for any monetary damages. For that you have to actually file a lawsuit, which must be done through the courts.
  • It won't help you with other legal problems, such as trademark, domain, or online reputation infringement issues.

Conclusion

Most online copyright infringement issues are not of a particularly malicious or damaging nature, and are best handled by being diplomatic and professional. Search marketers are already well equipped to catch copyright infringement online, and applying this basic knowledge of the law will, in most cases, save you the costs of an attorney and make you adequately equipped to act as your own legal counsel.

Part II of this article series on copyright law for search marketers will focus on tips and tactics from attorneys and the search engines on protecting your copyrighted material.

Online copyright links

U.S. Copyright Office

DMCA take down notice

Copyright Tips

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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