Content Infringment - pls advise

[gundul_mike]

Hi all:

I was partnered with a friend promoting his product / company via website. I have been working on the website for more than 1 year and already well-ranked for certain keywords (well, we already have some deals and many prospectus).

The problem arised when he stopped the cooperation without any notice or whatever. He made a new website, took content from my work. I already warned him but no response. I emailed his hosting company, they said there is no proof or legal law for such thing (I know there is a law here).

Any idea what should I do? What proof are usually required to insist the hosting company? My site is more than 1 year old and his site is only one month. My files hence (I think) are older than his.

Please help

Thanks

Mike

[tamecrow]

I'm no expert on copyright law* but surely if you can prove that you created the original site, and the date on which it was created, then it should be pretty straightforward.

*I do know someone who is, so PM me if you want his contact details.

[cw1865]

Aside from a copyright claim, you were partnering with this person. Even if no written contract exists you can still bring some sort of state based claim based on equitable principles like quantum meruit.

[Tig]

Dealing with the ISP or hosting company is a major pain. I actually posted about something similar not long ago at:
Google removed links
One of the stolen pages was actually on googlepages, and Google won't return my correspondence or take the page down, so even the big boys don't seem to care.
I ended up sending letters to the Attorney General, Better Business Bureau, and local legislators about it last week. I don't know if it'll do anything, but the only other option I have is to come up with about 5k to sue them.
Good luck to ya!
Ty

[suzstephens]

Unless there has been a WRITTEN transfer of rights in your work to your partner, you own the rights to your work and your partner has no right to use it.

Under the Digital Millennium Copyright Act, service providers can be held liable for copyright violations by their clients unless they take prompt action ("prompt" is not defined in the law) to remove or block access to material published by their clients in violation of copyright. This aspect of the law is referred to as "Safe Harbor". Under the Safe Harbor provision, ISPs must have a designated agent who handles reports of copyright violation.

I'm not going to take a lot of time to describe the law; you can easily Google "DMCA Safe Harbor" to learn more. I've blogged about the procedure for filing a copyright complaint here:

Real Estate Blog - What to Do When Your Blog or Graphics Are Stolen

[pauliii]

You are likely screwed. You two are partners and you both own the content and have equal rights to it unless you have some real proof otherwise. This same problem cost me $187,000 in 1994 (software code, not web site).

Bottom line: $107,000 legal fees, $80,000 settlement. It cost PLENTY when partners don't agree. I suggest you be nice and come to a settlement without involving attorneys.

The one thing you have in your favor . . . you may be able claim 50% of all his revenues (and vice versa). That would be a much easier to make that case fr than to make a case for rerecinding his rights to the content. In my case, the partner quit and then claimed 50% of the revenues earned by my selling the program. He wasn't going to do anything with it, just leach off of me.

The relevant law is copyright law. So if you do get an attorney, you need an intellectual property guy.

[flsurfkarma]

I would suggest having a lawyer write a letter. These work so much better than anything else.

[ronchalice]

I key phrase in your message might be "promoting HIS product." Who actually created the content --- not the design, the nav, etc. but the CONTENT? If you, in fact, are the content creator you have a conundrum of balance facing you. The potential financial recovery, vs the cost of litigation.

I think if it is HIS product, and HE created the verbiage and or images to promote it, you have little chance for recompense. But, then again I'm NAFL. You might want to PM tamecrow about getting his contact's advice.

PS do you have a copyright notice on your site? If so, who owns the copyright according to the site notice? It can make a difference. (Only if the notice was in place at the time he lifted the content.)

[Zombie Master]

Actually, I'm pretty close to the 9th Circuit Judge who ruled on this issue (who owns a website) a few years ago. The problem you may have is he owns the company (if I'm reading your post correctly) and the owner of the company owns information, including content and website name.

Yours is a little bit different than the normal situation where someone buys up corporate names and holds those corporations hostage in hopes of getting a little change from them so you may have grounds for recovery based on the work you put into the site.

It's worth discussing this with an attorney, I would think.

[fathom]

Originally Posted by gundul_mike

Hi all:

I was partnered with a friend promoting his product / company via website. I have been working on the website for more than 1 year and already well-ranked for certain keywords (well, we already have some deals and many prospectus).

The problem arised when he stopped the cooperation without any notice or whatever. He made a new website, took content from my work. I already warned him but no response. I emailed his hosting company, they said there is no proof or legal law for such thing (I know there is a law here).

Any idea what should I do? What proof are usually required to insist the hosting company? My site is more than 1 year old and his site is only one month. My files hence (I think) are older than his.

Please help

Thanks

Mike

The first thing you will want to do is register your content with the copyright office (in the US) U.S. Copyright Office - Current Fees which for a electronic version is $35.oo

You will want to then hit this from all angles - a C&D (Cease & Desist Order) to the owner, and Takedown notices to host, and all search engines. It does no good to threaten without properly formated documents so a little help.

Forget the partnering issue - that's for a a small claims court & judge to haggle over the details of who is telling more truth.

The "CLAIM" is no right to make a copyright claim and the way to prove that is own the copyright yourself -- surely $35 isn't too much to gain a registered certification of that right which means "he can't".

Nonetheless:

Review Google, Yahoo, and MSN DMCA claim procedures and generate DMCA Complaints ‘takedown orders’ for
Google, Yahoo, and MSN.

Generate a DMCA Complaints ‘takedown order’ for the hosting service provider.

Reviewing to see if they are on the
Online Service Provider Designated Agents list - protected by DCMA Title II

If not listed (not protected) which means they may or may not comply with take down order.

Proof all DMCA complaints for errors.

Fax, Register Mail, Courier (and where applicable email) all recipients at the same time.

Google.com F: (650) 963-3255)
Yahoo.com F: (40 349-7821 or eMail:
copyright@yahoo-inc.com
MSN.com F: (425) 936-7329 or eMail:
jkweston@microsoft.com
Hosting Online Service Provider
Alleged Infringer

..and it's good to prepare a version for
Chilling Effects and your own website and post (exclude all private contact information). This measure aids to curb future infringement. (making a reference with your usual copyright statement will get noticed pretty quickly).

On receipt of responses, append to original on your website.

Lastly if they are using AdSense on the offending pages you are entitle to their past 3 months of generated Adsense fees - so send a DMCA Complaint to Adsense as well... since they agree to only place ads on pages of their own copy Adsense forces them to counter-claim and if they don't or won't you get the cash.

If a claim is in Google, Yahoo, and MSN - their website isn't in organic results, or partner archives, they can't use in Adwords or on search network, or Adsense and content network... and if the host ignores you claim - they are liable for damages along with your ex-friend.

I've posted a great deal more on this topic at Website Copyright Infringement and DMCA Procedures - SEO Chat significantly on the rational for registering your content (and repeating that every 3 month if content changes regularly)...

[davidmg]

You might want to look at this site it will search for duplicate content on the web and they have a list of things to do on plagiarism Copyscape - Website Plagiarism Search - Web Site Content Copyright Protection

[fathom]

Originally Posted by Zombie Master

Actually, I'm pretty close to the 9th Circuit Judge who ruled on this issue (who owns a website) a few years ago. The problem you may have is he owns the company (if I'm reading your post correctly) and the owner of the company owns information, including content and website name.

Yours is a little bit different than the normal situation where someone buys up corporate names and holds those corporations hostage in hopes of getting a little change from them so you may have grounds for recovery based on the work you put into the site.

It's worth discussing this with an attorney, I would think.

That would depend on who has the rightful claim to copyright.

In reading the guy's post - I can't see why someone that owns something would just "move it somewhere else"... did they recognize that they didn't have a rightful claim to the domain name, thus no claim to website or website content.

But devils advocate - "IF" your claim is only that your ranked the content - you have no claim. If that content was indeed "owed" by the other person - "OWNED" defined as writing a substantial amount of the words [legal dialog doesn't note a specific word count or percentage but would suggest 75% is likely a substantial amount] you really don't have a leg to stand on...

[fathom]

Originally Posted by Tig

Dealing with the ISP or hosting company is a major pain. I actually posted about something similar not long ago at:
Google removed links
One of the stolen pages was actually on googlepages, and Google won't return my correspondence or take the page down, so even the big boys don't seem to care.
I ended up sending letters to the Attorney General, Better Business Bureau, and local legislators about it last week. I don't know if it'll do anything, but the only other option I have is to come up with about 5k to sue them.
Good luck to ya!
Ty

Unfortunately, you need to put things in proper format for anyone to take notice. Google has NO CHOICE BUT TO REMOVE upon proper notification... otherwise you can claim coercion with the alleged infringer... and get big bucks from Google.

[Orion]

Provided you have the rights (definitely figure that part out 100% first) then basically what fathom said!

[blitzen]

I don't get it. Why do people come here to ask legal advice? An attorney is much better time/money spent if you're serious. Hosting companies should be secondary to an attorney. After working with one, you'll understand the process and can take on some tasks, such as writing letters to the host.

E.g., I write cease-n-desist letters and paid my attorney to review the first one. I send him copies of the ones I send to those who infringe on my rights - just in case. The letters are much stronger when you include "cf: Ms. Doe, attorney at law".

My 2-bits:
1. Launch a better site/company with the knowledge from this experience.

2. Get a good attorney on board to review your policies and procedures. It's worth the money.
If the hosting company won't listen to you, they'll listen to an attorney.

3. Trademark any names that you have which are trademarkable. Start with the TM mark now until you get it registered.

p.s. Filedates can be changed. I don't know how well that information will hold up in court.

[Compu Solver]

The right answer is that your partner has equal rights to anything done under the partnership. The posts saying you should get your legal advice from a lawyer are correct, but I don't blame you for wanting to see what popular opinion is and for trying to avoid lawyers too.

I've had a lot of dealings with lawyers and in my experience, they fall into the following groups:

Incompetent - 60%
Crooks - 30%
Decent lawyers - 10%

Thus, seeking a lawyer is a sort of Russian Roulette.

If you have a mutual friend, ask them to approach your former partner (by the way, unless there is a formal splitting of the partnership, your partner may not be as "former" as you think and you could even be liable for some of his actions!) and feel them out about what is going on. Then try to work out a solution that is palatable to all parties. Failing that, I'd kick his butt.

[TrafficProducer]

You may get some Proof of what the website contained by using

http://www.archive.org/

[fathom]

Originally Posted by suzstephens

I'm not going to take a lot of time to describe the law; you can easily Google "DMCA Safe Harbor" to learn more. I've blogged about the procedure for filing a copyright complaint here:

Real Estate Blog - What to Do When Your Blog or Graphics Are Stolen

Your first assumption in your blog post is false... [Sorry but inaccrate advice is a pet peeve of mine... it must be pointed out]

Originally Posted by suzstephens

When you write a blog yourself, take a photo, or create an image in Photoshop, you automatically own the copyright to your creative work. As you all know, that won't keep someone from stealing it and posting it in their own web site or blog.

You have an automate right to claim copyright BUT that doesn't mean you have an automatic copyright - if you refuse to exercise your claim - that's your choice.

If you don't exercise your claim to copyright you are relying on a good faith belief that no one else will go so... but any thief willing to steal your copy and knowledgeable about copyright can register a works and once they have that certification your un-exercised commonlaw copyright claim is worthless... short of proving in a court of law that the other person made a fraudulent claim... BUT since you weren't interested in exercising your right to claim at $35 - it's a pretty good bet that attorney fees will be far less appealing.

The seond issue is:

Originally Posted by suzstephens

You probably don't need a lawyer to file a complaint.

While true, the DMCA's Safe Harbor Provisions of Title II that protect Google, Yahoo, MSN, hosts, etc. from claims of copyright infringement are very specific.

Follow this:

1. You file a DMCA claim,

2. Google remove content

3. Google notifies the alleged infrnger

4. The alleged infringer counter-claims

5. Google notifies you that you have 14 days to show prove of filing a claim in court,

6. To file a claim in court - you must show proof of copyright (your copyright certificate number is the only proof they will accept).

7. You must now file a copyright registration claim with the Copyright Office - it takes 4 months for a copyright claim to be reviewed for validation.

8. After 14 days without showing your proof of filing court proceedings - Google reinstates the content.

Now... the issue here is... back at #1 "You file a DMCA claim,"... YOU BLUFFED in the hopes that the alleged infringer doesn't call your bluff.

My points here are... people serious about copyright and infringement register their claims, those that aren't serious... "don't".

[Dustie]

Fathom is right, Gundul. Most original work, as long as it isn't considered work for hire, is covered under the intellectual copyright law, but that only protects you to the extent that you might be able to get a lawyer to write a cease and desist order.

If you want to sue you HAVE to have the copyright, trademark, patent...registered with the government or you'll have a hard time getting any lawyer to take the case.

Copyright is the easiest to register and the cheapest, but for trademark expect a minimum of 10 months. Patents I've no idea! Sounds like you're just dealing with copyright though, so I'd do what Fathom says...pay the 35.00 and register your work! Then try the legal letter route and if that doesn't work, sue him if it's financially worth it.

You might try small claims court if you don't want to do the whole lawyer thing. You can win, I think, up to 5,000 and, at least, with the registered copyright, you should at least get a cease and desist letter and court costs, but that's what you wanted right? And the cost will have been time and less then 200.00 most likely!

---------------------

Pauliii...that is a very sad thing to have happened to you! I'm sorry. You must have been really serously expecting a lot of money out of that program to be willing to fight it to the tune of over 100,000! And then to lose like that. I can't imagine what went through your mind when that verdict was read. I would have been out of mine!

---------------------

CW - quantum meruit? That's a new term I wasn't familiar with. Working in partnership with my son in law, I went and checked it out! Thanks for stretching my vocabulary!

[Dustie]

Paulli, from what I read about quantum meruit, is this what your partner claimed and why you lost your software lawsuit?

Gundul, following the rules of quantum meruit, then I'd say you are due compensation from the work that you did and he stole, but again, you have to have the work registered so you can claim copyright. Just saying you wrote the work, in this case, probably isn't going to work, unless you can get him to admit in writing that it's your work. And good luck with that!

[jtracking]

Originally Posted by gundul_mike

Hi all:

I was partnered with a friend promoting his product / company via website...

The problem arised when he stopped the cooperation without any notice or whatever. He made a new website, took content from my work.

My thinking is if there isn't a contract stating that your partner cannot use his files for another purpose or the same via another medium you might have a problem.

You said he took content from your work but he was your partner.

What exactly do you want from this previous partner of yours?

[InkodeR]

Originally Posted by TrafficProducer

You may get some Proof of what the website contained by using

http://www.archive.org/

Same thing i was about to suggest

[pauliii]

Originally Posted by Dustie

Paulli, from what I read about quantum meruit, is this what your partner claimed and why you lost your software lawsuit?

The suit never went to trial. I settled. The product was highly popular, and still is. The court appointed a special master to assess the percent contribution of each party . . . the "partner" couldn't remember much about the code so the partner's attorney amended the claim to copyright infringement. I was the one who put all the money into the development. The "partner" never put a nickel in, but he contributed valuable efforts without being paid.They bled me to death. The partner settled for $87,000 his attorney took $40,000 and he ended up with $7,000 less than I originally offered him as a settlement. We had no written agreement. I never contended that he was undeserving, however, his initial suit asked for $1 million for a product that had a few $ thousand in revenue at the time he quit.

Bottom line is, I ultimately did fine, BUT THE MESSAGE IS CLEAR . . .when both parties lose when they cannot agree.

[Kate Lennon]

What I do when this happens (and it happens regularly) is:

1. Go to the WayBackMachine (Internet Archive: Wayback Machine) and get a screen shot of the page(s) showing the dates when the sites were created, and the content that was on them on those dates.
Also go to Whois.sc and get screenshots of the dates when both websites were created, and other details.
Print out these images.

2. Send a note to the owner of the site pointing out that the material is yours, and requesting that it be removed. This is just for the record, so that you can prove at a later date (if necessary) that you made this polite request.

3. If/when you do not receive a reply in a reasonable time (I'd give it 10 days to 2 weeks; and make sure to specify that "if I do not hear back from you within ten days..." you will assume that they are disregarding your request) get in touch with the web hosting company that their site is hosted on, and let them know about the copyright infringement. *Politely* request that they take action, and point out to them that it would not be in their interests to be named in the lawsuit that you will be obliged to initiate unless you get redress. (As you have now informed them about the problem, they cannot later claim to have been ignorant). Assure them that you can provide them with proof of your allegations, and offer to send them this proof in a separate email.

4. Send the owner of the site a formal "Cease and Desist" letter, as an email AND as a written/printed letter, insisting that they remove the stolen content without delay, or you will have no option but to take legal action against them. Better still, get a lawyer to send this letter on your behalf. It doesn't cost much, and it gets results in 99% of cases.

5. Contact Google and tell them that your work has been stolen, giving them the essential details. Cite the Digital Millenium Copyright Act, and request that they remove the offending website from their search results. Again, tell them you will be happy to provide them with proof of your statements.

6. If all this gets you nowhere, find a good hacker and pay him or her to trash the site.

Hey, just kidding on that last one, obviously...

[weegillis]

You may need to first examine when and how the partnership was first formed.

Was it in fact a partnership? Is there any revenue service documentation of the joint liability?

What did each partner bring to the arrangement, and are there any existing written agreements? Are there any joint agreements with third parties? Is there a bank account?

Did the "partner" piggyback on your web skills and then leapfrog on their way?

The way it looks, your first claim is to the partnership. Until said partnership
is proven or disproved, ownership cannot be contended by either party. A legal partnership is binding until duly dissolved. Again, on the basis of said partnership, the "partner" is absconding with the chattels of the partnership by not properly accounting for revenues and liabilities occuring without your knowledge, another murky aspect.

In order to protect yourself from future liabilities incurred by the "partner", it will be incumbent upon yourself to dissolve said partnership. The option of course is to resolve your differences and form a limit liability partnership and let the accountants sort it out. Failing this, it may fall upon you to prove that a partnership in fact does not, nor ever did exist. One would be better to worry about the liability than the copyright, for the present and immediate future. You may be on the hook for more than you bargained.

You see how twisted this whole partnership question can get. As a consequence you may never completely resolve the copyright issues.

Any way this gets sliced, it rings of lawyers 'til the cows come home.

That said, you do have a competitive advantage in that your content is better indexed than the "partner's" upstart. Work at distancing your content from theirs. If your skills got the first site where it is, the "partner" will be hard pressed to get a copy to achieve the same results. Just keep making yours better.

With consideration for all the good advice given here, you might want to take this to heart: The best revenge, they say, is to have a good life. One should greatly favor this over protracted disputes. Could your skills be better put to use creating new inroads of your own on other fronts?

[adeelkhero]

Hey too much talk but no easy solution!

I would suggest going for all out war.

Remember: Its about your rights!

You are ranking good for most of the keywords!
Which means you have good SE visibilty!
Which means considerable amount of traffic or audience!

Here is the solution:
Get a small paragraph with a warning in it.

For example:

"Beware of fake services or copycats. The site XYZ is not associated in any way with OUR site. Any damage, loss of property or violation by availing site XYZ services does not entitle you for compensation by us."


hehehehe, created this warning in a hurry. Spend more time in creating short, robust warning which should command user intension or opinion in your favour.

Believ me it will work!

Thank you

[justicewhite]

Do definitely follow up your right to the end.

However, before you go down the legal path. Stop and ask yourself how much time and money you are prepared to spend on this.

I know exactly how you feel and I've been through similar experiences myself.

Remember the main people who gain from the legal actions tend to be the lawyers!!!

Take care and all the best in your fight...

[Tig]

Originally Posted by fathom

Unfortunately, you need to put things in proper format for anyone to take notice. Google has NO CHOICE BUT TO REMOVE upon proper notification... otherwise you can claim coercion with the alleged infringer... and get big bucks from Google.

The tricky part is to figure out EXACTLY what "proper notice" means. To one company, it means a letter in writing with certain exact words. To another, it may have to be an email to a specific account. And, of course, they don't tell you what you need to do because they don't want to deal with it...

[fathom]

Originally Posted by Tig

The tricky part is to figure out EXACTLY what "proper notice" means. To one company, it means a letter in writing with certain exact words. To another, it may have to be an email to a specific account. And, of course, they don't tell you what you need to do because they don't want to deal with it...

For Google, Yahoo, and MSN all the details to the "proper format" are in the links under the same name in my previous post Content Infringment - pls advise

As a matter of fact - every online service provider protecting themselves as a designated agent under DMCA Title II from copyright claims uses the same format since it is the only way they are protected from claim under Title II.

[gundul_mike]

Dear All:

Thank you very much for your advises.
Actually, I did the design, provide content etc etc including promoting the site.
I talked to his hosting company, and at the moment they suspend his account.

Talking to lawyer is not my priority at the moment. Even if it is only 1k, I'd better spend sometimes in my weekend to redo it from zero again and use that 1k for promotion.

Once again thank you very much for the info.

Regards from Bali,

Mike

[blitzen]

.

You'll also need to prove loss of something valuable.

.

[seo4china]

Is the DMCA valid overseas???

[TrafficProducer]

The Digital Millennium Copyright Act (DMCA) is a United States copyright law

On May 22, 2001, the European Union passed the EU Copyright Directive or EUCD, similar in many ways to the DMCA.


http://www.ukcdr.org/issues/eucd/eucd.html

European Copyright Directive - Google Search