DMCA: The law was on our side

I’m not a big fan of the Digital Millennium Copyright Act (DMCA). I think it goes too far to protect the rights of copyright holders over fair use and the public good. That said, the DMCA was on my side this week.

Early last week Kelly emailed me and said that a website (name and link withheld to protect the guilty) had copied verbiage from the Peel, Inc. home page. This was irritating, galling, and funny all at the same time. It was particularly irritating as the offending website was owned by a direct competitor in Peel, Inc.’s newsletter business in the Houston area. Furthermore it was galling in that they had copied text form our website verbatim stopping only to replace our company name with theirs. The funny part was that they not only copied the front page of our website verbatim, they copied the text from another of our competitors in Houston too! After looking at it I determined they had copied the text from an older version of our website circa March 2006 so the offending text had been up for around a year.

This is where the DMCA comes into play. The DMCA specifies that ISPs who host infringing material are can be held liable for the infringement if they do not take action to have the content removed. Classically this has been used by the RIAA and MPAA to force them to remove content or shut down the hosting service for clients who illegally post copyrighted music or movies. The DMCA, however, covers all copyrights, not just that for digital media. After finding out that our text had been ‘borrowed’ I composed a DMCA Notification and sent it to their ISP via email and fax on Wednesday the 10th. The notification includes copies of the offending material and samples of the copyrighted material, where each can be found on the web, and of course the name of the allegedly offending entity.

Side note: locating someone’s ISP is not as simple as one might expect. A whois will tell you who the domain name is registered to, but often not who is hosting it. Looking up the IP address of the web server will yield who the address is registered to but that doesn’t mean the company hasn’t leased the address out to someone else who is doing the actual hosting. I’m not clear what would happen if you send the DMCA Notification to the IP address owner and they were simply the upstream provider of the hosting service. Luckily it didn’t matter, the address owner was doing the hosting.

After being notified, the ISP is suppose to forward the Notification to the offender and alert the Notifier (that would be us) that the ISP is acting upon the Notification.

It took a whole week but yesterday evening the ISP forwarded the DMCA Notification to the offending party and gave them 48 hours notice to remove the offending content or their access would be terminated. About 18 hours later the offenders removed not only all of our copyrighted material but also the copyrighted material from our competitors that they had swiped too.

Side note: Alternatively the offenders could have sent back to their ISP a DMCA Counter-Notification if they believed that the material did not infringe on our copyrights. Not sure what happens after a DMCA Counter-Notification is filed. Does it turn into a he said/she said situation with the ISP? Do you have to file suit to enforce your copyright against the offender? I’m glad we didn’t have to find out.

My goal wasn’t to be a bitch to these people (although I did enjoy the power trip) but honestly, if you’re going to compete with someone, don’t copy the entire text of their homepage and put it on your own. Come up with your own content to post on your otherwise crummy website.

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I'm a gay geek living in Seattle, WA.

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