COPYRIGHT ENFORCEMENT MADE EASY

BY: LAWRENCE G. WALTERS, ESQ.
WESTON, GARROU & DEWITT

Few things can be more disheartening to a content producer than finding one’s valuable content displayed all over some free site, without your permission, just so some webmaster can generate a few more pages views than his competitor. All the time, effort, blood, sweat and tears that goes into creating high-end erotica is flushed down the tubes when content is stolen through little more than a few mouse clicks. The ease with which digital rights can be violated has presented the webmaster community with a unique challenge: How to protect online content from blatant theft while granting easy access to those entitled to view the materials?

Copyright law provides the starting point for any enforcement action, but the legal enforcement mechanisms can often be cumbersome and time consuming. The traditional sequence of events have involved retaining a lawyer, explaining the legal predicament, researching the identity and location of the infringer, beginning the process through a demand letter, often called a Cease and Desist Notice, and ultimately culminating in federal court litigation. While this procedure can occasionally produce results, it is rendered virtually useless if the infringer is located outside of the United States of America or simply cannot be geographically located.

Enter the Digital Millennium Copyright Act (“DMCA”): To its credit, Congress quickly recognized the difficulties facing online content producers in light of the rampant potential for electronic theft in cyberspace. To address some of these concerns, Congress passed the DMCA which allows copyright owners or their authorized agents, to serve Notices upon hosts, third-party billing processors, and others providing services to infringers[1]. The contents of the Notice are specified under federal law, which requires:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) Description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on a site;
(d) Your address, telephone number, and email address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Nothing in the terms of the DMCA prevents this Notice from being served electronically (i.e. via email) and specifically allows for electronic signatures on the Notice[2]. Some companies have developed their business model around service of DMCA Notices. For a fee, certain businesses will take down the infringer’s information, and prepare the DMCA Notice on your behalf. Advances in electronic communications, and a little ingenuity, now allow content producers to serve their own Notices automatically and electronically.

Our firm has developed the world’s first automated copyright enforcement device described on www.DMCANotice.com. By completing a simple electronic form, and using a combination of the E-Sign Act[3] and the Unsworn Declarations Act[4] our clients will now be permitted to generate and serve their own valid DMCA Notices containing all of the required elements contained under federal law. This innovative system dramatically reduces the time and level of human involvement previously required to generate DMCA Notices. Now, clients can simply fill out a simple form and, in minutes, generate a legal infringement notice containing an electronic signature along with all of the legally required statements. The service provider receiving the Notice must immediately disable or remove the allegedly infringing content, or risk liability as a contributory or vicarious copyright infringer under the Copyright Act. Most hosting and billing companies have adopted DMCA policies, and immediately comply with valid Notices to avoid monetary exposure for infringement claims. While some foreign service providers still ignore DMCA Notices, even many of the non-United States-based hosts and billing companies are beginning to comply in order to generate business relationships in the United States.

What used to take hours of research and prep time has now been virtually eliminated. The cost to the client has been reduced to a nominal charge to process, file and calendar the DMCA Notice for follow up action upon receipt of an electronic copy of the Notice, which is automatically generated by the system. Senders also receive a copy of the Notice they initiated, immediately upon sending.

In an era where legal concerns abound, and significant funds are being devoted to achieve legal compliance, any legal cost-saving device is sure to be welcomed by the industry. As technology develops, legal services will become more and more routinized with the client as the ultimate beneficiary. DMCANotice.com is simply the next in what will likely be a series of innovative legal tools designed to protect the best interests of the webmaster and secure important digital rights.

[1] Digital Millennium Copyright Act, 17 U.S.C. § 512.
[2] 17 U.S.C. § 512(3)(A)(i)
[3] Electronic Signatures in Global and National Commerce Act, (the “E-Sign Act”) 15 U.S.C. § 7001.
[4] Unsworn Declarations Act, 28 U.S.C. §1746.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all
aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not
be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com, www.FirstAmendment.com or AOL
Screen Name: Webattorney.