Plagiarizing Web Sites: Everyone Does It - Is This Legal?
Feb 1st, 2007 by admin
A frustrated web site owner sent this question. “I wanted to get your opinion about something that I saw today. I found an ad for a pet care company in our area and when we checked out their web site, they had copied materials verbatim and directly from our web site.
This included items such as service descriptions, reasons why to choose them, service areas, even our employee application. It doesn’t even look like they changed anything to fit what they actually do (e.g. they don’t have a daycare but have a checkbox for daycare attendant in the employee application). We weren’t sure if there are any sort of plagiarizing laws for this type of content or if this is just a shady business practice. What can we do?”
1.0 The Facts and Law
Does this situation sound familiar? Does it sound unfair? It is not right if someone takes something from you without your permission or the right to do so. The content of your website is (precisely who owns what can also depend on other factors, including the website development agreement) a creative product, which can include the written text, graphic design, computer code, drawings and photographs. All of these are included in the subject matter of the copyright law. Copyright is a federal law, which involves the right to control the copying of your original work. The law applies to all sorts of original works of creative expression - web site designs included. If someone took your site, containing your original work and cloned it (meaning made an exact copy, which is very easy to do) not only is it unfair, it’s copyright infringement. Infringement means interfering with your exclusive right to control your creative work. This type of copying is no different from copying any other creative work.
So what do you do with this information? You want to get the infringing work off the web, and you may want to recover money damages from the infringer. In order to succeed, you will have to prove what was on their site was copied from you, that yours was published first, and then you must show how you were damaged.
2.0 A plug for copyright registration
If you had registered the copyright in the work, (www.copyright.gov) you could be entitled to presumptive damages up to $150,000 per infringement. Another bonus of registration is that the work would presumptively belong to you. If you sued, you could also be entitled to recover your attorney fees. Incidentally, as a general rule, you must register before you can file an infringement action in the federal court - but do not whip yourself, very few people register their sites. However, proving the infringement without the registration presumption can be time consuming, making you wish you had spent that $45 to register.
If you wish to proceed against the infringer, you must prove copying. Step one is to copy or print the screen shots of their website and yours, comparing the two sites side by side. The visual “look and feel” is one way, but you can also prove copying by showing the underlying code as well. If you can, copy the pages in HTML to further demonstrate that one is a copy of the other. Pay particular attention to any parts of the site that direct people to your site and see if those too are copied. There will be some common words in your businesses, but there will be (or should be) many words that are unique to you.
3.0 Next Steps: The DMCA; Demand Letter or Cease and Desist
If, after taking the steps outlined above, you are still sure it’s a copy, then you have to choices: you can either get legal help, or go to battle yourself by writing a demand letter to the infringing party and their Internet Service Provider (ISP). In this letter, you want to make your points clear and simple, and threaten to sue them if they had don’t comply immediately by taking the infringing site down. Usually the ISP will take down the site while the debate ensues because under the Digital Millennium Copyright Act of 1998 (the DMCA) the ISP has a “safe harbor” (meaning they avoid being named in the lawsuit) if they do so. The DMCA became a law when many ISP’s were complaining that they were forced to defend themselves in lawsuits when they had no control over the content posted to the sites. The ISP only rents the computer space and the connection to the web. Be clear and reasonable in your demand, and it typically works in your favor. There are certain formalities to follow when issuing a demand to an ISP under the DMCA, but you can usually find instructions and contact information on the ISP home page under its “terms of service.” We caution readers that non-attorneys or those who do not specialize in copyright often do things at this step that can hurt claims and recovery down the road, so it may be worth it to get a quick opinion of a licensed attorney in your jurisdiction.
4.0 Final Step: What Does a Win or Success Look Like?
The final step is to come to some understanding of how you should be compensated for the hard work that has occurred. This is very difficult, and often you should be satisfied enough that you caught the thief and made them stop. This can damage their business, as they will stop having a web presence immediately. You might also consider having the infringer turn over control of any similar domain names as well.
5.0 Other Issues: Trade Mark and Trade Dress
In addition to copyright, there may also be trademark issues, which I have not discussed, as well as trade dress issues especially in the area of the “look and feel” of a web site. Making one site “look” confusingly similar to another is a form of unfair business practice addressed in trade dress laws, which cover how a product appears in the marketplace. Trade dress is why a consumer should not see two confusingly similar products for sale. It would not be fair if another company made its website look so much like say Amazon.com, that a consumer would order books from the competitor without knowing it was a competitor and not Amazon.com.
6.0 Best Practice: Be as Creative as Possible, Register and Monitor
The best practices for companies that want a strong web presence, is first, to create content that is unique. As discussed above, the immediate risk that accompanies taking work from another site is having your online presence disrupted, and then potentially being forced into expensive and time-consuming litigation. Next, register with the copyright office. If you have that presumption that you own the content on the site, it may be easier to confront theft when you find it, and to quickly protect yourself from a mistaken DMCA takedown notice. Finally, to continually monitor for cloned sites and those that may infringe. People are surprisingly cavalier about the internet, perhaps thinking that the size will protect the owner from discovering the theft. However, the vigilance of copyright owners may encourage would-be copiers to create their own content. After all, one of the purposes of the copyright law is to encourage creativity.