Finding a website using your photographs without your authorization can be a distressing situation. Luckily, the Digital Millennium Copyright Act (DMCA) of 1998 helps to protect individuals who have had their intellectual properties stolen on the web. This article is a guide to detecting and enforcing copyright by filing DMCA takedown notices with hosting providers that harbor copyright infringement.
I have found my images hosted on servers in China and Russia and all over the Middle East and I have come to the conclusion that those infringements are best left alone. The European Union does have the European Directive on Electronic Commerce (EDEC), which I have not researched.
Also, it is important to know that within the United States, the Fair Use Limitation allows the precise use of copyrighted material without permission. Fair Use is dependent upon a number of different conditions. For more information on fair usage provided by the United States Copyright Office, you can click here.
Over the years I have been finding more and more of my photos being used on the Web without my permission. Read on to learn more about DMCA and how it can help defend your copyright.
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The Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) was introduced in the House of Representatives by Howard Coble in 1997; it aimed at protecting copyright in a new age of digital information. The bill focused on criminalizing the act of circumventing digital rights management while adding on new intellectual property protection. On October 28, 1998, President Bill Clinton signed the bill into law, amending the original Copyright Act of 1976.
In particular, we will be focusing on a part of the DMCA called the ‘Online Copyright Infringement Liability Limitation Act.’ This part of the law shields Internet service providers from being sued for infringement acts carried out by those renting space on their servers. In order to remain protected, however, they must comply with certain rules such as responding to takedown requests.
While the DMCA is a piece of American copyright law, the act implements treaties of the World Intellectual Property Organization, and its practices may be applicable elsewhere around the globe. For the purposes of this article, however, we will be focusing on its specific use case for website servers hosted within the United States.
How to Search for Copyright Infringement
Step one is to find if your image is being used. For this tutorial, I will use one of my more frequently purloined photos. This photo of the Downtown Houston skyline is just such a photo.
The first thing you need to determine is whether or not your photo is being used on the Internet without your permission. To do this, go to images.google.com. Here you will notice an icon in the search box that looks like a camera.
Click on the camera and select “Search By Image” and this will bring up a dialogue box that will take you through uploading your image or providing a URL link to your image and searching Google with it.
For those using Google Chrome, there is a nifty plugin called Search by Image that will, once installed, allow you to right-click an image on the Web and search Google with it. Either way, the results are returned in the same way.
As you can see in this example, Google shows you a set of images that are similar. Not surprising, there are a number of photos of the downtown Houston skyline by other photographers. But the list below is more telling. As you can see, there are several links to pages hosting my exact photo. Some of them are mine (obviously) and some of them are sites that I have licensed the photo to. And then there are the others.
The copyright infringers.
Dig Up Details of a Photo Theft
Once you identify one of your photographs being used without authorization, the first step is to properly identify the website in question. Before we can file a DMCA takedown request, we must find out where the server is hosted geographically. If the server is hosted within the United States, then we can proceed with confidence. Otherwise, you can still file a DMCA takedown request, but the results will be dependent upon the country from which the website is hosted.
At this point, I click the link on a suspected infringer and collect the URL to do some research. For this example, I will use my own website so as not to incur the wrath of an infringer who might take issue with me calling them out in a public forum.
Here we see this guy named Jay Lee who is portraying my photo as his own. What a jerk!
Now at this point, you have two choices. You can peruse the Web site hosting your image and try to find contact info for the person or company and try to deal with them directly. This method yields a variety of results. Sometimes the infringer will agree to remove the image, or they might offer to license the image or, more frequently than I care for, they will tell your something along the lines of “too bad, so sad” or even ignore you entirely. Some infringers tend to get downright nasty.
Due to the large number of infringers I tend to come across, I opt to deal with the hosting providers. Most hosting providers have provisions for dealing with Digital Millennium Copyright Act (DMCA) notices that will put the hosting provider in the position of dealing with their customer instead of you.
To go this route does, however, require some research and effort.
The first thing to do is find the IP address of the Web site. Simply opening a command prompt and using NSLOOKUP will accomplish this easily.
Now that we know the Web site is hosted at 220.127.116.11 we just need to know the controlling entity for that IP address. To learn this we go to the American Registry For Internet Numbers, also known as ARIN.
Using their WHOIS search to search the IP address, we can see that Softlayer is the hosting entity for this Web site.
Alternatively, you can use ICANN WHOIS to look up registration information for domains as well. Simply input the domain in question and then hit the ‘Lookup’ button. A variety of information will be presented; we are most interested in the ‘Registrar’ info. An ‘abuse contact email’ or another form of contact information should be available.
We can then click on the abuse contact link in our lookup result to find out who to send our notice to. It is worth noting that if the hosting entity is outside of the USA, you might not get any response to your DMCA notice. If the IP address comes back as belonging to the RIPE Network Coordination Centre you are likely wasting your time if you try to file a DMCA.
As we see here, the abuse contact for SoftLayer is email@example.com. This is who we need to send our notice to.
Send a DMCA Takedown Notice to the Host
Now that we know where we are going to send a DMCA takedown request, we must craft the email. According to the act, our letter must include a number of crucial details, including our personal contact information, the name and address of the photo being stolen, a statement noting that we had not authorized the use of our content, a statement that the information we are stating is accurate, a statement that we are the authorized copyright owner, and a signature.
Here’s an example DMCA takedown request available from the Museum of Fine Arts (you can download it for your own use):
This is the template I personally use and which has been very successful for me:
Compose a new email with the subject: “Notice of Copyright Infringement“.
Then, in the body of the email include the following text and links:
The copyrighted work at issue is located at:
[Insert the URL of the page infringing on your copyright here]
Specifically, this image:
[If possible, provide the direct link to the infringed image itself. You can usually find it by right-clicking the image, selecting “Copy Image URL”, and then pasting the link into your message. This works well in Chrome most of the time. In some cases, you have to view the source of the Web site to dig this link out. If you can’t find it, don’t sweat it.]
The corresponding URL where our copyrighted material is located:
[Insert link to YOUR image on your Flickr page, blog page, whatever.]
You can reach me at [insert your email address] for further information or clarification.
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
[Your company (if you have one)]
[Your web site]
[Your physical address]
[Your phone number]
The above template meets the required standards of a legitimate DMCA notice.
Use a Host’s Online DMCA Form
It is worth noting that some hosting sites provide online DMCA forms. These are preferable over sending an email when they are available. If you suspect a hosting provider might have such a form, a Google search using the name of the provider along with DMCA will usually lead you to the form.
Below are links to the more common hosting site DMCA forms and information pages:
Once you have submitted your DMCA notice, whether by email or by online form, you can usually expect a notification that your notice has been received. Often it will include a tracking number that will be used for any communications and updates to the status of your notice.
In my experience, most hosting providers will have the issue resolved pretty quickly. Some of my notices have been addressed in less than 24 hours. The longest I have had to wait is about 3 or 4 business days.
Fight the Good Fight Against Infringement
Once we send the email to the appropriate address, the Internet service provider should remove the content from their servers within a reasonable amount of time (it should be no longer than a few weeks).
Not every notice will succeed. You will have to determine how much effort you are willing to expend enforcing your copyright. I would say my success rate, inside the USA, is about 95%. Your results may vary.
Many copyright infringers don’t know that they are doing anything wrong. They think the Internet is a bucket full of royalty-free images and content. These kinds of infringers are often very apologetic and will remove the content.
Some infringers outsource their web design to a third party. The website owner is led to believe that their web designer is making sure that the rights to the content are in place. Unfortunately, there are many unscrupulous Web designers.
And then there are the infringers who simply don’t care about your rights. They think that if you posted the image online, you should expect it will get stolen. The reactions of this type of infringer can sometimes be quite frightening.
It should be noted that the person infringing upon your copyright may submit a counter-notice indicating that the photograph should not have been removed. Remember, if you are asserting copyright in the form of a DMCA Notice, you must be prepared to back it up legally. At this point, the ISP must legally replace the content it initially took down. Unfortunately, if you wish to continue from this stage, you must file a lawsuit in court.
And one last closing thought. In most cases, when you file a DMCA notice, the hosting provider will disable access only to the content you specify and leave the rest of their site in place. The one exception to this I have found is GoDaddy. Upon receipt of a valid DMCA notice, they will disable the customer entirely. That means you will have to work with their customer and GoDaddy to resolve it. This can be a HUGE pain, as I have learned from personal experience.
If you find your photo being used online without your permission, a DMCA takedown can often help you get the content removed at the source. As long as the web host complies and the offender doesn’t put up a fight, this is one way you can take back control of your photos online.
Good luck with your efforts in protecting your copyright!
Image credits: Header illustration licensed from Depositphotos