The first step is to take a deep breath, calm down and actually look at the offending piece in question. You might just discover the “theft” is a positive for your business. I can’t tell you how many times I’ve been asked to look at pilfered content only to find the content is being used to portray my client’s products or services in a positive light.
If someone borrows an image of one of your products to write a glowing review, do you really want to accuse them of copyright infringement? This “infringement” is natural, positive publicity, the kind most companies would kill for online.
Mind you, there can be situations where you prefer the party doesn’t use a particular piece of content. If this is the case, then contact them and ask them nicely to change to something else. Turn it into a win-win by offering to do an interview. Don’t just fly off the handle. There may be no reason to do so.
Unfortunately, most people copying sites are doing so for nefarious purposes. They deserve little mercy. Your response should be quick and aggressive. Many attorneys suggest sending a cease and desist letter to the infringing party. While this is certainly one approach, you end up wasting a good bit of time when there is a far quicker solution.
I prefer to use the admittedly controversial Digital Millennium Copyright Act of 1998 [“DMCA”] to deal with the problem. The proper approach is to investigate and identify the hosting company for the site in question. This identification process can be a bit of a challenge at times since a person copying websites will try to hide their information behind proxy listings. With enough analysis, however, the host can almost always be identified.
The next step is to serve a takedown notice on the DMCA agent for the hosting company. This notice puts the host in a difficult position. The DMCA provides the host with immunity from copyright infringement lawsuits based on the conduct of its hosting clients, but only so long as the hosting company meets certain requirements detailed in the DMCA. One of those requirements is the removal of the offending content.
At this point, the hosting company will contact the person listed in the client account for the offending website and notify them of the takedown notice. That person can then contest the takedown complaint. I’ve never had a single situation where this has occurred in with a copied website. There is simply no basis for the person in question to argue they haven’t infringed on the copyright of my client.
The result is the offending website is taken down and stays down. The process typically takes three days or so to play out.
If you are unlucky, the person who copied your website will be using a host outside of the United States. The DMCA is a U.S. law, so it does not apply to a hosting company located in Spain or Australia or another country.
Does this mean you have no options? Not at all. There is simply much more footwork involved in making the copied site useless. The first step is to file DMCA takedown notices with Google and Bing/Yahoo. The goal is to get the offending site kicked out of these search engines. Doing so, in most cases, is sufficient to make the site worthless to the scammer, and they will drop the website.
If the site remains active, the final answer is to investigate the identify the parties controlling it. Depending on their specifics, a legal plan can then be designed to attack the site. The attack may include pursuing lawsuits in the jurisdiction of the offending party or seeking an injunction to block their site from being seen in the United States. These tend to be expensive propositions, so it is usually wise to pursue all other options before going down this road.
There are plenty of steps that can be taken if someone copies your website. The DMCA is perhaps your most effective mechanism for going after the party in question, but you have to know how to use the law correctly. If someone has copied your website, contact me to discuss your options. The offending site can often be taken down in 1 to 2 business days.
Richard A. Chapo, Esq.
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