How do I best document an online copyright violation before starting legal proceedings?
May 20, 2004 3:45 PM Subscribe
I recently became aware of a very serious copyright violation regarding copywritten material belonging to a family member being used on a for-profit website with no attribution. My relative wants to proceed legally, but is afraid that the site will get pulled down by its creator and there will be no legal evidence of the violation. Archive.org has not indexed the site. I have screenshots, but are those enough?
Response by poster: He is in the process of getting an IP lawyer, but asked me to see what I could do in terms of web stuff. I am not aware and couldn't find any other internet archives that are available for free. Google's cache might work, but not sure if that would need a notary as well? Anyway any ideas are appreciated as I gather evidence for him.
posted by chaz at 4:10 PM on May 20, 2004
posted by chaz at 4:10 PM on May 20, 2004
save the HTML of the pages. Why are they so intent on lawsuits, why not just send a request for takedown and let them take it down?
I think a lawsuit should be a last resort, even if it's Rush Limbaugh Nazi Ashcroft Robot Monkey Fox News Franken using your words/photos/music. Unless you can prove they're making lots of money off the work, the suit will likely go nowhere and just intimidate them to take stuff down sooner.
posted by mathowie at 4:23 PM on May 20, 2004
I think a lawsuit should be a last resort, even if it's Rush Limbaugh Nazi Ashcroft Robot Monkey Fox News Franken using your words/photos/music. Unless you can prove they're making lots of money off the work, the suit will likely go nowhere and just intimidate them to take stuff down sooner.
posted by mathowie at 4:23 PM on May 20, 2004
In a nutshell, you would have to establish and prove damages if you are attempting anything other than cease and desist. Are there monetary damages? Has this website made any significant money from the use of the material.
This is a very common occurrence on the net and doesn't translate to instant wealth when an offender is discovered.
Ask them to cease using the material. That would seem to be the sensible endeavor. And BTW, it's 'copyrighted', not 'copywritten'. It is a right and not a writing, note.
Good luck with it.
posted by tonebarge at 4:27 PM on May 20, 2004
This is a very common occurrence on the net and doesn't translate to instant wealth when an offender is discovered.
Ask them to cease using the material. That would seem to be the sensible endeavor. And BTW, it's 'copyrighted', not 'copywritten'. It is a right and not a writing, note.
Good luck with it.
posted by tonebarge at 4:27 PM on May 20, 2004
Here's the law on infringement and remedies. An injunction means that the court forces the removal of the webpage. Damages can be actual (lost profits or income as a result of the infringement) and/or statutory (similar to a pain-and-suffering award in a tort lawsuit.)
posted by PrinceValium at 5:29 PM on May 20, 2004
posted by PrinceValium at 5:29 PM on May 20, 2004
While your freely-accessible version is still available, what's the big problem? This kind of thing just happens on the web -- getting litigious doesn't help anyone.
Since you say your relative is "afraid that the site will get pulled down by its creator and there will be no legal evidence of the violation", I'm guessing you're after some kind of compensation or something. If you were to send a cease and desist (still a bit of an overreaction) and get the site taken down, why would you need to take things any further?
posted by reklaw at 5:34 PM on May 20, 2004
Since you say your relative is "afraid that the site will get pulled down by its creator and there will be no legal evidence of the violation", I'm guessing you're after some kind of compensation or something. If you were to send a cease and desist (still a bit of an overreaction) and get the site taken down, why would you need to take things any further?
posted by reklaw at 5:34 PM on May 20, 2004
If you are really concerned that they will destroy the evidence, hire a lawyer - have the lawyer hire an independent computer "expert" to grab the site and make a record. You want someone who will make a good witness so that they can establish under oath that this copyright violation actually occurred at this site on this date. For a major site, this is probably overkill; they are unlikely to lie about what their content may have been at any given time. If they do destroy the evidence and you have a record, they are cooked. So many people, think Nixon and Martha, suffer more from the cover up than from the crime.
posted by caddis at 5:56 PM on May 20, 2004
posted by caddis at 5:56 PM on May 20, 2004
By the time you pay for the lawyer and the computer 'expert', you probably won't have anything left over.
posted by mischief at 6:32 PM on May 20, 2004
posted by mischief at 6:32 PM on May 20, 2004
If you were to send a cease and desist (still a bit of an overreaction) and get the site taken down, why would you need to take things any further?
It's been well established in (American) jurisprudence that if somebody else makes money from your work, you have a right to some of that money, if not all of it.
posted by jjg at 10:05 PM on May 20, 2004
It's been well established in (American) jurisprudence that if somebody else makes money from your work, you have a right to some of that money, if not all of it.
posted by jjg at 10:05 PM on May 20, 2004
A good way to preserve evidence is to get witnesses--have other people visit the site and save copies. Another good thing to do is make your own copy of their site, and then upload all those files to a third-party storage site like Yahoo! Briefcase -- that way, the time/date stamp Yahoo! gives to it will help you prove when you made the cache file.
Ultimately, if the guy takes down his site and denies it was never up, things will work out the way any fact dispute works out in court: each side presents their evidence, and the jury decides who is lying. The best thing you can do at this point is marshal as much evidence as you can.
posted by profwhat at 4:37 AM on May 21, 2004
Ultimately, if the guy takes down his site and denies it was never up, things will work out the way any fact dispute works out in court: each side presents their evidence, and the jury decides who is lying. The best thing you can do at this point is marshal as much evidence as you can.
posted by profwhat at 4:37 AM on May 21, 2004
Your biggest problem will be determining how much the site made from the pilfered text, since that will be the upper limit of the award. Don't expect a punitive award.
posted by mischief at 6:11 AM on May 21, 2004
posted by mischief at 6:11 AM on May 21, 2004
Not necessarily mischief -- even if the site made no money at all, statutory damages are still possible, and they can go up if the infringement was "willful." Whether they would apply here is, of course, a question only a duly qualified, hired, unconflicted, real-life lawyer could answer.
posted by profwhat at 6:17 AM on May 21, 2004
posted by profwhat at 6:17 AM on May 21, 2004
a duly qualified, hired, unconflicted, real-life lawyer : Yup, all roads lead back to that.
posted by mischief at 9:01 AM on May 21, 2004
posted by mischief at 9:01 AM on May 21, 2004
Response by poster: Just for clarification, this was a book written by a relative which sells very well and has made him a good deal of money. It has to do with real estate and investing. A website has taken large sections of the book and is charging people to read it, along with other stuff, as a subscription website. It's hard to tell how well they are doing sales-wise, but they have great google results and are doing a lot of google and overture ads, so I assume there's some money there. In any case, simply asking to cease and desist doesn't cut it, because they have apparently been using this material for quite a while and presumably been profiting from it.
Thanks for all the advice, I have saved the HTML, done screenshots, and video-taped the website, and he is meeting with the lawyer on Monday.
posted by chaz at 9:25 AM on May 21, 2004
Thanks for all the advice, I have saved the HTML, done screenshots, and video-taped the website, and he is meeting with the lawyer on Monday.
posted by chaz at 9:25 AM on May 21, 2004
This thread is closed to new comments.
An IP lawyer will be able to tell you what will need to be done before a lawsuit is filed. More than likely it'll need something along the lines of witnesses and a notary-ish person.
posted by geoff. at 3:55 PM on May 20, 2004