Protecting Your Copyrighted Work Online

Often, the best strategy for dealing with speech you do not like is through more speech, rather than resorting to threats of legal action. In some situations, however, more speech may do little good, such as when someone copies your work and publishes it on another website without permission. For instance, a recent post on MediaShift's Idea Lab blog asks "How Do We Deal With Stolen Content?". In that post, Gail Robinson, the editor-in-chief of Gotham Gazette, relates how the Gazette's technical director has found many sites reprinting the full text of Gazette articles without permission, often using them with little or no attribution and sometimes even making the articles look like original material. This post prompted us to think about strategies for citizen media creators to protect their online work from copyright infringement. The law provides you with several tools for protecting your work, including sending DMCA takedown notices to online service providers that host websites or blogs that copy your work. Despite the potential usefulness of these tools, it is important to use them judiciously to protect your rights without unduly chilling the speech of others.

We cover the basics of copyright law elsewhere in this guide -- see especially What Copyright Covers and Using the Works of Others -- but suffice it to say that copyright protects your articles, posts, photographs, videos, and other works of creative expression from the time that they are fixed in a tangible medium of expression (e.g., from the time you first type your words into your computer or save a photograph or video as a digital file). At the very least, other websites that post your articles or other work without permission are infringing your rights to reproduce (i.e., the right to make a copy) and distribute them. Before taking any action, however, you should consider carefully whether the other site's use of your work could be a fair use. Wholesale copying of your work will usually not be fair use, but selective quoting and paraphrasing may be permissible, especially if it is for purposes of commenting on or criticizing your work. For details, see the Fair Use section in this guide. You should also consider whether you have granted a license to the public to reproduce and distribute the work, such as through a Creative Commons license posted on your site. For details on licensing, see the Copyright Licenses and Transfers section and its subsections.

If you determine that someone is infringing your copyrighted work and that it likely is not a fair use, the most straightforward route is to look for contact information on the offending site or blog and write the person an email stating that the site or blog is infringing your work and asking for it to be taken down. Your email need not be long and complicated; you just need to state the basics facts (i.e., the website is using your copyrighted work without permission) and what you want done about it (i.e., take it down). The Chilling Effects Clearinghouse has thousands of copyright cease-and-desist letters in its database that you can use as models.

If contacting the infringing website operator does not work, you might have better luck with the company that hosts the website or blog. You can use a tool like Who is Hosting This? to help determine the identity of the host. A hosting service or other online service provider has an incentive to comply with a takedown notice because the DMCA safe-harbor provisions give it a defense to copyright liability if, upon receiving such a notice, it expeditiously removes infringing material posted at the direction of its clients. For details, see Protecting Yourself Against Copyright Claims Based on User Content. In order for a takedown notice to be effective, you must send it to the registered copyright agent of the host or other online service provider you want to contact. The U.S. Copyright Office maintains a directory of designated agents, and the provider's website will often list the designated agent in its "Copyright Infringement Policy," "DMCA Policy," or a like posting. In addition, a takedown notice must contain the following items in order to be valid:

  • a physical or electronic signature of a person authorized to act on behalf of the owner of the infringed copyright;
  • identification of the copyrighted work or works claimed to have been infringed;
  • identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed;
  • information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address);
  • a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and
  • a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner

17 U.S.C. § 512(c)(3)(B). If your takedown notice meets these formal requirements, then the host or other online service provider has to expeditiously remove the complained-of material if it wants to maintain its immunity from copyright liability. After it does so, however, the person whose work has been taken down may send a counter-notice to the service provider. If this happens, the service provider will notify you about the counter-notice. From this point, you have fourteen business days to file a lawsuit and notify the service provider that you have done so, or else the service provider is obligated to put the disputed material back up. See 17 U.S.C. § 512(g)(2).

Note: If both the website operator and the hosting service are outside the United States, then you may not have luck via these routes.

Another strategy you can adopt to help protect your work online is to register your website content with the U.S. Copyright Office. Registration is most valuable, however, only if you would be willing to go through with filing a lawsuit. The good thing about registration is that, if you sue someone for infringement and win, then the court can award you statutory damages (damages that are set by statute, so you don't have to prove how you were actually injured, which can be hard) and attorneys' fees. In a sense, registering your work puts some teeth behind the letter-writing strategies discussed above. If you are interested in this route, please consult the Copyright Registration and Notice section of this guide and Sarah Bird's excellent posts about registering website content, Sample Forms and Strategies for Registering Your Online Content and Why You Should Go to the Trouble to Register Your Copyright When Everyone Tells You That Your Work Is Protected Automatically. Again, let me emphasize that registration really only helps if you are willing to sue, which many are not willing to do.


Subject Area: