When Is It Worth Chasing Online Infringement?

At a UK journalism site, there's an interesting Q&A with a lawyer about when it's worthwhile going after online infringement. Notice that the issue isn't whether you can, but whether you should bother. It's couched in terms of corporations, but just scale down the considerations (and the enforcement budgets), and there's something to learn for freelancers.

You could actually bring to this the idea of asymmetric threats, that you hear so often in a terrorism context. In this case, there is a low barrier to entry, both in money and time, for someone to infringe on copyright. And yet, protecting copyright faces a slope that quickly steepens, with costs of taking most legal action quickly going out of the reach for smallfry infringers that don't have deep pockets.

I think we could start to develop a methodology for deciding how and when to take action:

1. Review whether you have registered copyright for the item, or if you're still within the three month window of first publication. If the latter is the case, then immediately register the item, and don't wait until you "get around" to doing a group registration to save yourself a few dollars. If it wasn't registered and you've passed that three month period, then the best you can possibly do is use a DMCA take-down notice (check under Writers Resrouces on my blog site) to have the ISP remove the material, and maybe try bluffing to get some money.


2. Look at the infringer and decide whether it is an individual, small business, or mid-sized or large business.


3. Is the person or organization actually making money off your work, either by charging for it or using it as marketing?


4. Start with contacting the offender. If the person just seems to be a fan, either have them ask for permission and provide a link to your own site, or ask them to remove it. If the person doesn't, use a DMCA take-down notice. If the ISP is not in the United States, then you are out of luck and it's not worth pursuing any further.


5. If the site owner is a company making a business use of your work, send a demand letter, by certified mail, with an invoice for what you want to charge. Make removal of the material contingent on keeping the cost down (unless they decide to license it). If they want to settle for some smaller amount, take it and then use a DMCA take-down to get the material removed.


6. If the company is bigger than a mom-and-pop undertaking, then consider pressing your demand more strongly. But check wtih a lawyer how much it would cost to head to court. You may still decide that a DMCA action is the most effective use of your time.

Why reduce things to a specific process? Because that can take the gut knotting out of deciding what to do and let you quickly get to a point of knowing how you are going to handle a given situation.

So, all you conscientious and contentious writers and other creatives out there, does that make sense? Any sugestions for modifications?

Record Labels Keep Copyright Infringement Dollars - Nothing to Musicians

Although it's in the realm of music, I think it behooves any independent creative person to know what's going on in other industries. According to a story in Home Theater, little to none of the millions that record labels have taken through copyright infringement suits ends up in the hands of the musicians and composers who created the works in the first place:

For example, three of the four majors banked $270 million in the lawsuit against Napster (barring Sony BMG, because BMG owns Napster). And all four have made deals with YouTube. But musicians are still waiting for the penny to drop—into their pockets, that is. Their managers and lawyers are now threatening to file lawsuits of their own, this time with the labels as defendants.

Sure, there will be complications of who is owned how much, but the concerning thing is that a) they will take as much time as they can as interest mounts in the bank, and b) the "legal expenses" are eating up most of the proceeds. Now, if they can successfully sue, then they probably registered copyright in a timely manner. That would mean that they could have - and, I'd bet, did - sue for legal expenses. So they get money for legal expenses, and then hold on to all the money for legal expenses? Sounds like the sort of double-dipping that recording labels are known for. Any bets as to whether publishers would be more forthcoming in similar circumstances?