Many businesses with strong and successful web presences find themselves in the position of having to determine how to respond to the unauthorized use of their web content by others. In fact, it is not uncommon for a web content owner to wake up one morning to find essentially its entire website – which may be the principal vehicle for all of its marketing and customer-outreach efforts – to have been copied nearly verbatim by a competitor. In some cases, the competitor in question may not even know of the infringement, having relied on a website-development vendor to create the site. However, regardless of the cause, it is critical for the original owner to have a plan to address such activity. 

A successful outcome for this kind of matter matters typically depends on a content owner’s compliance with the following three commandments: 

  1. Know what copyrightable content you own. Knowing what you created may be easy to determine in many (though not all) cases, but knowing what is copyrightable may not always be so clear. A website typically consists of a compilation of different kinds of materials (e.g., text, photography, artwork, streaming media), some of which the site owner may have created and some of which may have been created by others. In addition, certain kinds of content (such as lists of addresses or tables of statistics) may not be eligible for copyright protection, regardless of their source. The U.S. Copyright Office has provided guidance on the basics of copyright protection in a circular available here. 
  2. Register your copyrights. Copyright registration is a prerequisite to seeking remedies for infringement in federal court, and untimely registrations may result in the inability to secure statutory damages under U.S. copyright law. The availability of statutory damages may control a decision regarding litigation in a matter, because the alternative is to present proof of a claimant’s actual damages, which may be difficult or impossible to calculate accurately. Fortunately, copyright registration is relatively easy and inexpensive. More information from the Copyright Office is available here. 
  3. Tread carefully in enforcement efforts. It is important to pursue true infringers aggressively, because in some cases, failure to enforce a copyright may result in the inability to remedy the infringements. However, overreach in enforcement efforts can result in wasted legal expenses and, worse, exposure to legal liability for inappropriate claims. Certain provisions of U.S. copyright law (such as, for example, the website-takedown-notice provisions in Section 512 of the Digital Millennium Copyright Act) even make statutory damages available for individuals or businesses that suffer business interruption or other injuries as a result of an inappropriate DMCA notice letter. 

Effective protection of copyrights almost always involves a holistic process and nuanced analysis of the issues faced by content owners. The assistance of knowledgeable counsel often is critical, especially when it comes time to enforce your rights.