« Books | Home | Design »

Archive for the Copyright Category

Protect and Monetize Your Online Content!

Posted on Wednesday, September 29, 2010 at 1:28 PM

Seven steps for setting up an effective, low-cost copyright enforcement program.

By R. David Donoghue

The online world is a double-edged sword for publishers.

On the one hand, it is a powerful publishing tool bringing content to a much broader audience, with much lower costs than are required to print and distribute by mail. On the other hand, the Internet also allows virtually anyone to copy content with only the most minimal costs.

This new reality has led to a dramatic increase in content theft, both intentionally and accidentally.

The best way to protect content on the Internet is to acquire and enforce copyrights. More and more, widespread content theft is causing organizations of all sizes to consider enforcement programs to protect their content. The good news is that any size publisher can set up an effective, low-cost copyright enforcement program that will protect its content and can even turn the publisher's copyrights into a profit center, in seven straightforward steps:

#1 -- Register Your Copyrights

You have a copyright as soon as you create original content, but to use the federal courts to enforce it, you need to register your copyright. No matter when you register, you can recover actual damages. But actual damages are often hard to prove. And even when you can prove them, they tend to be low compared to the legal fees for copyright infringement litigation.

For example, the actual damages when someone purchases a single-use subscription to an electronic trade publication -- but uses it like a group license by forwarding the publication around an office -- would generally be the difference between the cost of the group and single-use subscription. That difference rarely justifies the six- or seven-figure fees for a copyright litigation.

However, if you register your copyright within sufficient time of the work's publication, you can seek statutory damages. Statutory damages are a legal replacement for your actual damages, (which are often hard to prove, and relatively low compared to legal fees for a copyright case). Statutory damages, however, can be as high as $150,000 per work.

So, going back to the forwarding of the single-use subscription electronic trade publication, if the subscriber forwarded 12 monthly publications over a year, the statutory damages could be as high as $1.8 million, or 12 times $150,000. Statutory damages, therefore, make copyright litigation a viable enforcement tool.

#2 -- Give Notice of Your Copyrights

On the first page of every copyrighted work or on every copyrighted webpage, print a copyright notice in the form of: "Company Name © 2010" (or the year or years the content was created). "All rights reserved". That single statement, properly placed, puts infringers on notice of your copyright, and if your copyrights have been properly registered, allows for infringements to be deemed willful, resulting in potential damages up to $150,000 per work. Without the notice or other proof that the infringer had actual notice of the copyright, the maximum statutory damages drop to $30,000 per work.

#3 -- Keep Track of Your Content

To prosecute infringers, you need to show that the infringer had access to your content. For print content, you can use sales records. For Internet content, you can use statistics software like Google Analytics. These software packages will tell you which IP addresses accessed your website and which pages were visited. The IP addresses can then be used at least to identify companies or individuals that accessed your content. If you are sending out digital content via the Internet, you can modify your subscription agreement -- or terms and conditions for member-benefit content -- to allow you to track the use of the electronic file you send. Tracking can identify electronic copying (forwarding) of your content.

#4 -- Set Traps

The hardest part of making a copyright case is often proving the copying. A simple fix is adding something distinct or obscure to your content. Consider adding an obscure Latin phrase, removing a hyphen from a normally hyphenated word, or choosing the British version of a word. It is surprising how frequently copiers do no proof-reading or editing of any kind.

#5 -- Police Your Content

Turn the tables on content thieves. Just like they use the Internet to get your company's content at no cost, you can use the Internet to catch them at little or no cost. Set up an automatic search (for example, using Google Search) that will search the Internet daily for the special word or phrase you added to your content, or for a distinctive sentence in your content. That way, you can stop the theft almost as soon as it happens.

#6 -- Customize Your Terms and Conditions

Draft the terms and conditions specific to your particular content. Write them in plain English, in a large enough font for a user to read them, and place them prominently throughout your website. The more understandable the terms and the more prominently they are displayed, the more likely that a court will hold that they control the case.

In the terms and conditions, make clear what rights your user is granted -- for example, whether they are granted a license for personal use only or have some rights to forward or reproduce the content. If the content is electronic, consider a statement that you may place spyware on the user's servers to track the use of the copyrighted materials. That allows you to gather reliable evidence of any infringement that will simplify later copyright infringement cases and help force quick settlements.

Additionally, make sure to identify any limits you want on discovery and specify that statutory damages will be available. And whether you choose to arbitrate or to litigate in federal court, identify which city the arbitration will be conducted in, or which district court should have exclusive jurisdiction over any cases related to your company's content.

#7 -- Establish a Plan and Take Action

Set up a protocol for dealing with infringers. As soon as your tracking efforts identify a new infringer, have a plan in place for gathering evidence, stopping the infringer, and either settling with the infringer or pursuing legal action. You should also set criteria for how to respond to different types and levels of infringement. This saves the time and expense of having to make individual decisions about each infringer.

As soon as your publication identifies an infringement, investigate the extent of the infringement and follow the criteria you established. You are free to immediately file a lawsuit, but in many cases, you can save money and hassle by sending a strongly-worded cease and desist letter first. Having the letter sent by counsel adds credibility. Identify the copying, attach your copyright, and demand whatever corrective actions you want -- whether it is simply removing the content, or removing the content and a cash settlement. Make sure to give a response deadline. A deadline shows you are serious and avoids unnecessary delay.

The enforcement mechanisms outlined in the seven steps above are powerful and relatively inexpensive to implement. The simplicity and relatively low cost of this plan means that it can be used by publications of all sizes -- not just by the Fortune 500 companies. Content providers, both large and small, have generated real profits from enforcement techniques like these, in addition to protecting their content and their current revenue stream.

R. David Donoghue is a litigation partner in Holland & Knight's Intellectual Property Group. Additionally, Donoghue founded and authors the Chicago IP Litigation Blog, where he analyzes intellectual property cases in the Northern District of Illinois. He can be reached at david.donoghue@hklaw.com, 312-578-6553, or www.chicagoiplitigation.com.

Add your comment.


Posted on Wednesday, May 20, 2009 at 3:49 PM

Reference books for editors and writers.

It is important for any publishing professional to have access to the right style, grammar, and writing guides. We have compiled a list of some of the most useful, comprehensive books out there for publishing professionals. Visit our Books page to see the complete list.

Add your comment.

« Books | Top | Design »