Copyright Infringement: The Most Common Outcomes

Filed as Features on April 7, 2008 11:47 am

It seems that a large number of bloggers run their sites with very little thought about copyright law. Though they don’t plagiarize content or scrape feeds, they grab images, copy large blocks of text and embed media without much thought to the original author or whether their use is truly “fair use“.

It seems that many bloggers simply want to share what they find interesting. But while that is a noble cause, some make the mistake of not merely linking to what they like, but wholesale copying and pasting it.

Though many don’t mind their works being copied, others do. It only takes one angry copyright holder to cause a great deal of headaches for a site, especially a small one, and many are caught off guard at exactly how much trouble a copyright dispute can be.

“But what is the worst that can happen?” Many bloggers ask. The answer, unfortunately, is quite a lot.

What’s the Worst That Can Happen?

When dealing with copyright infringement, the worst-case scenario is almost always a criminal case being filed against you or facing a large lawsuit from a larger, more determined foe. But while either of these things could have a drastic impact on your life, both are exceedingly rare for bloggers.

The reason for the lack of criminal cases is that copyright infringement by bloggers rarely meets the standards for a criminal copyright infringement and, even if it does, there are almost certainly other cases of much great importance.

Lawsuits, on the other hand, are rarely an issue because it is very difficult to successfully sue for copyright infringement. In the United States, one has to first register their work, learn the identity of the infringer (often by filing a “John Doe” lawsuit) and then sue the infringer, usually in a location far away from them. Few have the resources to go through those steps and, of those who do, the process is generally not worthwhile as the amount won is often lower than the amount spent obtaining it.

Though criminal cases and lawsuits are definitely real threats that can happen, they are, in truth, the rarest of outcomes. Only a fraction of a percent of copyright disputes see the inside of a courtroom in any regard.

However, this isn’t to say that there aren’t consequences to copyright infringement that bloggers shouldn’t be worried about, just that they are ones that are far less publicized.

A More Practical Case

Rather than a lawsuit or a criminal case, a much more common response to an alleged copyright infringement is a cease and desist letter. This is, fundamentally, a letter from the copyright holder instructing the person using his/her work to stop doing what they are doing.

Though cease and desist letters are scary, especially since many carry very threatening language, the best response is almost always to obey the letter and comply until you have legal counsel telling you that it is safe to ignore it.

If you comply, generally, there is very little else said about it and the incident is quickly forgotten. Very few copyright holders push the issue past this point if they get what they were looking for in the letter.

The other common response to a copyright infringement is a DMCA notice. These notices can be filed with one of three different entities.

  1. Your Host (if within the United States)

  2. The Search Engines

  3. Your Advertising Networks

The first is the most direct and can have some of the most severe consequences. Depending on your host, if you have a DMCA notice filed against you, you could have your entire site shut down. Every host is different in their response, some surgically remove the content or request that you do so, others temporarily disable the entire site and still others simply close the account, especially after the second or third notice.

If the notice is instead submitted to the search engines, it could end up in the removal of some or all of your site from the search results. MSN and Yahoo! seem to purge the entire site while Google only removes the infringing URLs. This can, obviously, cause a very severe drop in traffic to your site especially, if like most bloggers, a very large percentage of your traffic comes from the various search engines.

Finally, though advertising networks were not clearly covered in the DMCA, many do accept DMCA notices and many copyright holders do take advantage of that, especially when dealing with spam bloggers. These notices can result in you losing some or all of your advertising revenue. The potential impact will depend on the site and how dependent it is on advertising.

It is important to note that, in all of these cases, you will have the opportunity to file a counternotice if you and your counsel determine the original DMCA to be false or misguided. It, barring some other action from the original filer, should result in the restoration of the work in 10-14 days.

But while these outcomes may seem scary, they are actually fairly easy to mitigate against. Most likely, a blogger acting in good faith and not operating in a field where false notices are common, such as criticizing Scientology, has very little to actually worry about.

The Reality

The reality of the situation is this: If you act in good faith, consider copyright when working on your site and show respect to other creators, the odds of being involved in even a minor copyright dispute are very slim.

If you follow the steps I outlined previously for avoiding copyright conflict and remain a good neighbor on the Web, you likely won’t have any issues at all.

Of course, even sites that do show disregard for copyright, generally, never have any issue with it. The simple truth is that the vast majority of infringement on the Web goes undetected and, even if you do infringe, the odds of being caught are slim.

However, as more and more bloggers and Webmasters start to pay attention to these issues and detecting content reuse becomes easier, the odds are going to increase. Likewise, the consequences for infringing are not likely to get any lighter.

Though the chances of getting caught may still be slim, they are growing rapidly. It is worth taking a few moments to be respectful and follow the law, especially when so many bloggers and content creators are perfectly happy to share their work with you.

Conclusions

The reality of copyright infringement on the Web is much different than what you see in the news. For every Jammie Thomas, successfully sued by the RIAA, there are thousands of sites shut down by DMCA notices or cease and desist letters.

But while having your site shut down or your YouTube account closed may not be as scary as being sued for hundreds of thousands of dollars or, worse yet, being put in prison, if you invest a great deal of time and energy into your work, it is worth protecting.

Now is a great time to take a moment and look at how you use copyrighted works on the Web. From there, decide what you can do to ensure that you don’t end up having to scramble to find an attorney or new hosting.

You owe it to yourself and your readers.

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  1. By Jonathan Bailey posted on April 7, 2008 at 10:42 pm
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    RTM: I’m glad that you enjoyed the article. However, it is worth noting that being on the Internet doesn’t give one the right to do what they’d like, we are still human beings connected to one another after all…

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