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Better Business


What Can Happen When Your Images Show up on Someone Else’s Web site?

By Jonathan Bailey

 

The ASMP Bulletin’s Year End 2010 issue featured the article What Can Happen When Your Images Show up on Someone Else’s Web site? By Jonathan Bailey, copyright (c) 2010.

 

The print article provided important background about the Digital Millennium Copyright Act (DMCA) and described the protections this act offers to photographers in the form of DMCA take down notices, which can be filed against the unauthorized use of one’s images on the Web. Here, Bailey outlines several scenarios whereby filing a DMCA takedown notice would not be appropriate.

 

As powerful and useful as the DMCA take down system can be, there are times where its use is simply not appropriate. This can be either because the law doesn’t allow for a take down notice to be filed or, even if it can be filed, it may backfire and create a worse problem.

 

Here are several situations to watch out for:

 

1. Not a Copyright Dispute
The DMCA and its safe harbor provisions are for copyright only (Hint: It’s what the C in DMCA stands for). This cannot be used for dealing with libel, privacy or other issues. Just because someone says things that are untrue or invasive, doesn’t mean the DMCA can be used to silence them.

 

2. Not an Infringement
Don’t send takedown notices on cases that have strong fair use arguments or may be allowable under your license. Also, make sure that the elements that are being copied are actually copyrightable. Copyright does not protect an idea or a notion, just the expression of it.

 

You don’t want to send a notice only to find out that the other party wasn’t infringing at all. Be knowledgeable of the law and know where the boundaries lie.

 

3. Copyright Isn’t Why You Are Upset
Sometimes a use of your work might technically be an infringement, such a fan fiction, however you aren’t mad about the actual infringement, but rather the specific nature of the use. Whether it’s a mean-spirited use, one that is getting a lot of attention or something else altogether, you need to exert an even hand with your copyright policy.

 

Silencing only your critics, for example, not only risks a firestorm but will upset those you wish to allow to use your work. It is important to make your license terms clear, for everyone’s benefit, and accept the good with the bad.

 

4. You Risk the Streisand Effect
The Streisand Effect is a term for when someone tries to censor a piece of information, through a variety of means, and only ends up drawing more attention to it. This is very commonly seen with dubious DMCA notices.

 

A legitimate and fair DMCA notice rarely results in such an effect, but be wary of communities and sites that flaunt the law deliberately as they may latch hold to such a notice, no matter how valid it is.

 

5. Not a Host/Search Engine
It’s important to note that the DMCA’s safe harbor provisions only protect hosts and search engines from liability for content posted at the direction of users. For example, Flickr is protected from what its users upload, but the users themselves have no such protection. You should not send a DMCA notice to a user, that is territory for a cease and desist letter.

 

6. Not a U.S.-based Company
The DMCA is an American law. It only applies to servers within the country. Though other nations, including the European Union, Australia and New Zealand, have similar laws, they often have different requirements and need slightly different notices. With other countries, there is no such obligation at all.

7. You’re Not the Copyright Holder
Only the copyright holder or an authorized agent can file a DMCA notice. If you aren’t either of these, you can alert a host to a potential infringement, but you can’t file a formal notice. You can, if you wish, also alert the copyright holder to the abuse and help them take action.

 

8. Better Solutions Are Available and Untried
Finally, if you have other alternatives for working out the solution on an amicable basis, you should try those first. Yes, with spam blogs and other sites that misuse content and work to separate themselves from their owner, a DMCA may be your best first shot, however, in most human cases, you should at least try and work it out with the other person first. Not only can you usually find a better solution, but often times you make new friends and contacts that way as well. In short, the DMCA should be a last resort.

 

Reasons to Be Careful

There are many good reasons to be very careful when filing DMCA notices, but here are some of the more important ones to consider.

 

Legal Issues: §512(f) provides very severe penalties for those who knowingly file false DMCA notices. See also Open Policy Group v. Diebold.

 

Weakening the Law: Too many invalid DMCA notices will not only turn public opinion against the safe harbor system already in place (even more so than it currently exists in some circles), but this could also force the
law to be weakened or altered, limiting its usefulness.

 

Reputation Damage: Finally, even if there are no legal consequences to your action, filing bad DMCA notices will inevitably hurt your reputation, as it has many companies and organizations that have done this repeatedly.

 

Bottom Line

To be clear, I’m not recommending never to use the DMCA. It is an important and valuable tool. However, it is critical to pause and make sure that it’s the right tool for the job.

 

In the end, if you have any doubt whether the notice you’re filing is proper, don’t file it. It’s that simple. Mistakes do happen from time to time, but if you are careful and sure, they can be kept to an absolute minimum.

 

 

Author Bio: A writer, journalist and Web developer by training and education, Jonathan Bailey has nearly 15 years of experience in building Web sites and has built dozens of different home pages for a variety of purposes. In 2001, following a personal struggle against a plagiarism of his work, Bailey began to take up plagiarism fighting, dedicating much of his time detecting and stopping misuse of his content. In the past nine years he has stopped over 700 cases of plagiarism related to his own work. In 2005, as a response to these issues and to aid others, he started the blog, Plagiarism Today, and, due to high demand for his expertise, began offering consulting services. In 2009, he joined the company CopyByte as manager and took the company independent in 2010. Currently, Bailey continues to blog at Plagiarism Today while working full-time for CopyByte. He also co-hosts the Copyright 2.0 Show with Patrick O’Keefe. For more information about Bailey and his background, read his extended bio on Plagiarism Today.