There is nothing more frustrating than learning that the technical or product information that you wrote, or the photographs that you took for your website have been stolen and used on someone else's website. Sometimes the copying is so blatant that the other website looks just like yours! If a competitor steals your website content, it can do real damage to your business. Website copying is common because of the popular myth that if something is on the Internet; it is in the "public domain" and therefore can be used by anyone. Sometimes the copying is done by unscrupulous businesses or web developers who do not want to or are possibly incapable of creating their own original content.
With a few preventative steps, you can protect your website and your business.
First, make sure that you own any content on your website. The owner of the copyrights to content is the creator of the content unless there is a written agreement transferring the ownership. If someone else has written any materials, done any design work, or taken any photographs, get a written agreement transferring those items to you.
Next, if you are in a competitive industry where this type of copying is common, you should register your website's copyright with the United States Copyright Office. You also should keep the registration up to date. It is easy to add additional materials to online works and most websites are updated on a regular basis. When new content is added to the website after the copyright registration is filed, that new content is not automatically added to the copyright registration. Rather, a new registration must be filed which indicates that it covers the new materials.
If your work is very valuable, or if you have a particular concern about copyright infringement, you might inquire with your technology consultant about the availability and cost of software that prevents others from copying your website content. Another helpful technology is software that detects copying by searching the internet for content that is substantially similar to your content.
To help address pervasive copying of online works, the Digital Millennium Copyright Act ("DMCA") went into effect in 1988. The DMCA provides a process for removing unauthorized works from the internet. Specifically, the DMCA provides a safe harbor to internet service providers and website operators who did not directly infringe on a third party's copyrights, did not have actual knowledge that the material was infringing, did not receive financial benefit directly attributable to the infringing activity and respond expeditiously to a proper notice to remove the material. [i]
To understand the DMCA, it is helpful to understand who is involved in displaying a website on the internet. In order for a website to appear on the internet, several service providers are involved: (1) the website operator or owner (whoever actually controls the content on the website); (2) the internet service provider, also known as the "ISP" which provides the website operator with access to the internet; and (3) the domain name registrar, which provides the uniform resource locator ("URL") or domain name to the website operator. GoDaddy.com is a well-known domain name registration company.
When a website has stolen your content, you can have a DMCA notice sent to the internet service provider who acts as the host of your website. The ISP has the ability to control the website operator's access to the internet. The ISP is often confused with the domain name registrar. The domain name registrar has control of the web address, but not the content. The domain name registrar is not in a position to remove the website from the internet, even if the website is infringing your copyright. The ISP does have that control and will usually be responsive to a DMCA notice.
Typically, a properly prepared DMCA notice will result in prompt removal of the infringing material. Sometimes, dishonest website operators move the content to a new ISP rather than permit the ISP to block their access to the internet. In such cases, send a DMCA notice to the new ISP and repeat the process until the website operator gets tired of moving its website from host to host. A website may experience intermittent downtime if it is forced to move hosts.
In extreme situations, you may decide to send a DMCA notice to the ISP and also file a lawsuit against the website operator who intentionally copied your content. A copyright must be registered before a lawsuit can be filed.
Although protecting online works can require diligence on your part, the laws and technological tools do make it manageable. Familiarize yourself with the preventative measures available and, in the event of an infringement, to work closely with an attorney familiar with both intellectual property laws and internet laws.
By: Maria Crimi Speth
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