Accused of copyright infringement?
You receive a takedown request. It’s about an article on your website. And now you have to remove the duplicate immediately. Maybe you are even asked to pay compensation for damage caused. The takedown notice is filled with legal jargon, so it all sounds a bit threatening.
And yes, the article is published on your website. But is it really that bad? By your standards the article is not that special at all / the content is whitely spread across the web / hardly anybody visits your website / you know the author personally / you hire others for the content. To be honest: what you think or stand for is in this case not important. Let’s do some checks to decide on how to proceed.
Check the takedown notice
Let’s assume that the takedown request you receive is matching the one below.
We understand that you are unpleasantly surprised by our letter and enclosed invoice. First of all, we want to make it clear that the amount we ask you for is absolutely not a fine or punishment. It is a settlement proposal. We consider this settlement as compensation for the damage that the author / photographer / designer / illustrator has suffered from the illegal copy on your website, according to our calculation.
If you do not comply with the settlement, we will bring the infringement to a judge. It is then up to the court to decide whether there is an infringement and how high the damage is. Of course we hope that it does not have to come to that point and you will comply with our settlement proposal.
If you think there is no copyright infringement, you can object. You must then submit a copy of the document in which the author gives you permission to publish the work on your website.
Is the sender allowed to act on behalf of the copyright holder?
In the first instance, check whether you are dealing with a real organization that may represent the copyright holder. Is it clear who sent the letter, and on behalf of which copyright holder it was done. You should be able to easily contact this party by email. Research on the internet can help with this.
Which copyrighted work has been copied to what extent?
It matters a lot whether you copy 100 originals in full or 1 text for 25 percent. These are two extremes, to indicate that you yourself need to know which work has been taken over and to what extent it has been done. Also check the urls with the taken over content and the degree of takeover. Therefore, take a good look at the urls on which the copied content is stated and also check whether the number of words per article that is stated in the letter is correct.
Check the law
The starting point of copyright is the protection of the creator. The creator – in this case the author – automatically has the exclusive right to exploit the article. Simply said this means that if you want to use the article, you must first ask permission from the author. In essence, your specific situation is almost never an exception, even if you have your reasons to think otherwise. Nevertheless, there are exceptions in every legal system and it makes sense to look closely at them.
Check what is exactly requested
Legal language can sound threatening. What is actually requested in the takedown notice? Maybe you are only asked to remove the content. Keep in mind that this is usually a proposal, not a fine.
Check the calculation of the settlement proposal
The takedown notice must properly substantiate the compensation requested. Often there are guidelines for this, which you can find online yourself.
Remove the content and inform the copyrightholder
If you are in doubt, always remove the content from the urls. That is not a confession of guilt, but a precaution if you are really wrong. It is also wise to check other urls. Especially if you hire someone else for the content on your website.
After removal, inform the copyright holder. When the content is removed, please inform the (representative of) the copyright holder. It may sound bland, but it doesn’t hurt to mention that you made a mistake. Many copyright holders do not pursue a case if the infringer has committed his mistake and removed the content (that is no guarantee). You are interested in the work of the copyright holder, so it can be the start of a collaboration.
In the event of a claim, find an expert advisor
Proposals can give the impression that an arbitrary amount is required from you. And the reality is that it sometimes goes that way to scare you off. But unfortunately for you, a proposal can also be very high on reasonable grounds. I work with customers where the initial damage is more than 50 cents per word. Obviously this differs per country, and depends on the applicable laws and case law.
If you don’t want to pay what is requested, get in touch with a good lawyer. That must be an experienced intellectual property expert. Representation by an expert lawyer will most certainly lead to a deterioration in your position. A good lawyer costs money, but can also negotiate a better deal for you.
Whatever happens, respect each other
It’s always best to make a deal. Lucally in most cases an agreement is made without the intervention of a court. And as indicated, it can be a great start for doing business together. That’s how we got our first big customer!
Do you see the importance of proactive content protection, but you don’t know how to start? I would be happy to help you provide insight. I am also very curious what you want to know more about. Let me know and fill in the form.
I am not a lawyer by profession. This article does not constitute legal advice. What is written on this webpage is my personal opinion. It’s based on my experiences with helping journalists and publishers protecting their content.