In Copyright Infringement, Availability Does Not Equal Distribution

In a recent court ruling, a judge said that the Recording Industry Association of America could not sue for copyright infringement simply because someone gave others access to a computer directory. There must be evidence that someone actually downloaded copyrighted material. However, in the same case, the judge ruled that the RIAA could have its investigators download songs from such a directory, and that would be proof of infringement.

The lesson to take is this: if you find your copyrighted material available for download someplace like Amazon.com, download a copy of your own materials as proof that it was made available. Then you can happily make your case, assuming that you've registered copyright.

Newspapers Using Blogs Without Permission?

Generally you might think that bloggers often take copyrighted material and reproduce them without permission online. But a UK blogger found that the Sunday Mail reproduced one of his entries without even asking for permission. The author sent a letter to the paper:

Not having worked for the Mail on Sunday before, and a stated wordage figure proving elusive, I pluck a conservative amount out of the air and stick it on the bottom of an invoice, which goes off via the kind auspices of the G.P.O. To the Mail on Sunday’s credit, they pay me my two hundred quid quicker than most biggish companies would, and John Wellington sends me his (what I am sure are sincere) apologies.

Good for him - but one graph of the reply from the paper (outside of the check) was disturbing:

We generally take the view that blogs published on the internet have already been placed in the public domain by their authors and, in case of amateur writers, most people are happy to have their work recognised and displayed to a wider audience.

There is apparently some history of this happening in the UK, once again the Mail on Sunday. And in some cases, it appears that bloggers are finding writing or even graphics used by papers without permission but then thinking they were fortunate. This commentary in the Guardian Unlimited (online presence of the Guardian in the UK) is correct in stating that online work also is intellectual property.

But in the United States, that doesn't help you a bit unless you have registered your copyright. Registering after infringement lets you take legal action, but you can only go after the actual profits made off your work, and you cannot ask for legal fee reimbursement. No, the only practical way to go is to register either before the infringement, or within three months of the first publication (which, in the case of blogs, means when it first appears online). If you are not registering the copyright of your new blog entries every three months, you are running the risk of someone using them and being unable to do much of anything about it.

The Magic of Fair Use

I've seen a lot of discussion about the Harry Potter copyright infringement suit. But for all the certainty lay people have, the experts are saying that, as with many fair use arguments, the case is a crap shoot. This article in the Hollywood Reporter is worth reading for those in the writing business, becasue you can never know enough about the conditions that control your fortunes - or lack of them.

News and Photo Copyrights

There are some significant questions as to whether the press has a right to post the photos of the woman who allegedly had a sex for money relationship with former New York governor Elliot Spitzer. In my FotoCounty blog, I mention a piece in Photo District News as well as an angle that I haven't seen yet covered.

Warning: Possible Infringing Site

On a discussion board, a writer mentioned having found a piece she wrote for Health Magazine appearing on a site called Healthy Park (or Healthy Book). The writer gave me permission to pass this on. She said that what she wrote was owned by her and not available for use elsewhere without her permission. She also noticed a number of other Health writers' work on the site. I did some checking on Whois (the way you find who owns a domain), and the person is based in Beijing, and there is no email address listed. In other words, forget about trying to get in touch with the site owner, let alone get paid.

However, the ISP is Enom.com, which is based in Washington state. That means it is subject to the Digital Millennium Copyright Act of 1998, or DMCA. You can issue a DMCA take-down notice and have the ISP remove any copyright-infringing material. For information on how to formulate and file a DMCA take-down, click here.

Filing DMCA Complaints

If you've ever found some of your work posted on the Web without your permission, you know it can be an upsetting experience. Someone is taking and using your property without so much as a by-your-leave. Many writers will try to track down the site owner and either threaten legal action (impossible to do if you haven't registered copyright) or send an invoice (often ignored).

There is another choice: the Digital Millennium Copyright Act of 1998. Under US law, if the ISP that hosts the Web site is in the US, then it must respond to a demand from a copyright holder to remove material that is posted without permission. I've added a file under Writer Resources with a summary of what you have to include in such a request and a short primer in how to find which ISP hosts a site.