Following up on a Cease and Desist

Filed as Features, Guides on July 16, 2007 10:00 am

You’ve tracked down a plagiarist or someone else who is misusing your content. Upset, frustrated and perhaps a bit angry, you send them a letter demanding they stop.

However, no matter if your letter was written off the cuff and angry, intended as a polite request or created using a stock letter, there is a chance the person receiving it might act unfavorably.

The letter can bounce, be ignored or, perhaps worst of all, generate a negative response from the plagiarist, either in private or in public.

The simple truth is that, as plagiarism and content theft has shifted away from individuals seeking praise to profiteers seeking an easy living, the cease and desist letter has become less and less useful.

The odds of a favorable response to a cease and desist letter have dropped drastically and it is more important than ever to have a plan of attack for when it doesn’t work.

Learn the DMCA

The Digital Millennium Copyright Act of 1998 is the single most important law to bloggers and Webmasters looking to protect their content. The notice and takedown regime put into place by the DMCA, which calls upon hosts to remove infringing works once properly notified, is the most powerful tool small copyright holders have when protecting their works.

It is a law that is useful no matter where the copyright holder is located, since foreign rightsholders can file notices the same as citizens. It is also useful no matter where the site is hosted since notices can be filed with search engines and directories, thus hindering the spread of infringing material on the Web, even if it can’t be taken down.

However, using the DMCA can be a tricky task. It requires researching who the host is, preparing a properly-formatted DMCA notice and then sending it to the correct person. The process can be intimidating the first few times one performs it. However, I have previously outlined the steps and offered tools to assist with sending a DMCA notice in my article “How to Write an Effective DMCA Notice” on this site.

In addition to the article, anyone with questions about using the DMCA can post to the Performancing Legal Issues Forum and I will do my best to assist them.

Seek Out Other Options

If a DMCA notice or other host takedown is not practical, which is common in cases where the site is hosted in non-western countries that don’t have notice and takedown as a part of their law, it may be necessary to seek out other options.

First, as mentioned earlier, it is possible to file such notices with all of the major search engines, including Google, Yahoo, MSN and Ask. These notices might not result in the works being taken off of the Web, but at least it makes them almost impossible to find and prevents them from competing with you in the search engine rankings.

Second, look and see if the site has any advertising and, if so, report them to their advertising networks. Nearly all networks, both domestic and foreign, have strict rules against copyright infringement and will often cut off a site once notified. This often forces sites to close down or, at the very least, move on to other content. Please note that different ad networks have different reporting policies so it is important to take each on a case-by-case basis.

Finally, if the plagiarism is ongoing and taking place through an automated means, such as RSS scraping, consider using technology to block the site. Using your .htaccess file to block the scraper can do as much to stop the infringement as any legal notice. Sometimes, stopping plagiarism is as easy as turning the infringer away at the gates.

Though none of these methods are perfect, they act as good backups for when the work can not be easily removed from the Web.

One Rule… Never Go Public

When a cease and desist goes awry, especially when the plagiarist shoots back with a nasty email or, worse yet, a scathing blog post, it can be tempting to take the matter public. However, no matter how much you are in the right, it is almost never wise to take try the matter in the court of public opinion.

The first problem is that you might not have all of the facts. Consider that the plagiarism could have been the work of a paid ghostwriter or content producer and the person’s name who is on the work might not have done the lifting. Accusing a Webmaster of plagiarism might open the door for defamation suits down the road if your accusations turn out to be untrue.

Second, mud-slinging rarely benefits anyone. Even if the evidence is overwhelming, someone is going to believe the plagiarist over you. No matter how small the numbers might be, it is not worth the risk of reputation damage to take this into the public arena.

Finally, taking these issues public is a tremendous drain on your time and resources. It takes a lot of time, distracts from your Web site and draws your readers into an inherently personal matter. It can work in a case or two, but it is not a good long-term strategy.

None of this is to say that there is never an occasion to take such a matter public. If a plagiarist files a public accusation against you, responding may be necessary and egregious cases that can not be resolved any other way might call for it.

However, these situations are exceptionally rare and, most of the time, the temptation to take things public should be avoided, no matter how strong it is.

Conclusions

The traditional cease and desist letter might not be as effective as it once was, but it is not the end of the world. There are still plenty of effective methods available to Webmasters and bloggers looking to protect their content.

Though fighting plagiarism is not as easy as it once was and requires more knowledge and understanding about copyright law, that is not necessarily a bad thing. The more knowledge that Webmasters have not only the better they can protect their works, but the better they can exercise their free speech rights and avoid stiffling others speech unnecessarily.

After all, if we’re all going to get along on the Web it is going to take understanding and cooperation. Those can only come about through knowledge.

Though the reasons for the shift are not good, perhaps the fact that simply yelling at one another does less good can produce some positive changes.

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  1. By Ade posted on July 16, 2007 at 11:51 am
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    This is timely. I just discovered someone plagiarizing me.

    Reply

  2. By SandraR posted on July 16, 2007 at 1:01 pm
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    Had to stop by and say Kudos’ to an excellently written article.

    Reply

  3. By mike posted on July 16, 2007 at 3:13 pm
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    I agree. Just had a run-in myself with a certain video sharing site you might have heard of. Additionally, we just got the rights to this photo, which I’m putting on my flickr page: http://www.flickr.com/photos/15512283@N00/762518278/

    Cool article.

    Reply

  4. By Jonathan Bailey posted on July 16, 2007 at 5:15 pm
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    Ade,

    I’m sorry that you are having that problem, please consider either emailing me or posting to the Performancing Legal Issues forum (linked in the article) and I’ll see what I can do.

    I’ll gladly help any way that I can.

    SandraR,

    Glad you liked the article!

    Mike,

    Sorry to hear that you’re having trouble as well, once again, please feel free to email me or post to the Performancing Legal Issues forum. I’ll gladly see what I can do.

    I’m glad you enjoyed the article!

    Reply

  5. Blog News Watch » Blog Archive » When Cease and Desist Is Met With Silence and InactionJuly 16, 2007 at 8:06 pm
  6. By Ade posted on July 16, 2007 at 9:14 pm
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    Thanks.

    I actually reported the offending blog to Blogger and they took down the site in a matter of hours.

    Reply

  7. PlagiarismToday » Why the Cease and Desist Doesn’t WorkJuly 17, 2007 at 3:21 pm
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