Porn 101: Copyright, Piracy and the DCMA

On October 8, 2012, in Legal, by adultbizlaw

pirateskull 300x300 Porn 101: Copyright, Piracy and the DCMAOne comment I hear the the most often is from new webmasters and content producers complaining that their content has been stolen and posted on a tubesite/torrent/message board. Their letters almost always have a desperate tone since the webmasters/content producer has tried everything possible to ask the infringer to take the content down only to be stonewalled or ignored completely. Obviously, it is quite upsetting to know that all their hard work is simply being stolen and posted by others to enjoy for free.

Before I can discuss the Digital Millennium Copyright Act, it is first important to discuss copyright. Volumes upon volumes of legal treaties and text have been written about copyright. It is strongly suggested that anyone that produces content to read everything they can about the protections that having a copyright registration can provide. It is simply too voluminous to discuss in a blog post here. Google is your friend.

However, it is vitally important that as a content producer that you copyright all of your content. Sending your content to the U.S. Copyright Office is rather easy. Usually my clients do it themselves. It is also rather inexpensive depending on the volume of content you want to copyright. You can even do it online through the U.S. Copyright Office’s website ( Please see: http://www.copyright.gov/eco/ )

The fee is a mere $35.00 and you can even upload the content directly to the copyright office. You do not even need to go to the post office ( Some types of content does require a hardcopy to be mailed in ). The U.S. Copyright Office even provides a step by step tutorial on how to register your content online ( Please see: USCopyrightOnlineSubmissionTutorial ).

No content producer/webmaster can complain that his/her work is being copied and distributed for free on the Internet if they have not taken the time to register their content and receive the all the protections a registration can afford. Most circuits within the federal court system REQUIRE a completed and returned federal copyright registration BEFORE you can even file a copyright infringement lawsuit against another party. Some circuits just require that the registration has been filed but not completed. Be aware though, if the U.S. Copyright Office rejects your content registration for some reason and you have already filed the lawsuit the court will more than likely dismiss your case.

Therefore, it is imperative that before you release your content to the world that you take the time to register the movie/scene/website content with the U.S. Copyright Office. There are vast differences as to what you can recover in court between having a preregistered work and work that is registered AFTER someone steals it. Preregistration can make the difference between hundreds of thousands of dollars versus not having a lawsuit at all. If your content is registered you are entitled to statutory damages under copyright law. If it is registered after the infringement you will only be entitled to “actual damages” ( Please see:  http://www.copyright.gov/title17/92chap5.html )Which means you have to show how much money you actually lost because of the infringement. To do so you will need to hire a copyright expert witness to testify (you cannot testify as to how much you lost) which will cost you an average of $5,000 to $20,000.

The DMCA is another rather complicated law that is not easy to understand, even for lawyers. However, if you are going to produce content and/or be in the business of online content management and websites, you need to be familiar with it ( Please see: http://www.chillingeffects.org/dmca512/faq.cgi ). Like copyright law, volumes have been written about the DMCA and the more the you know the better you will be able to handle theft of your content.

Before you can simply file a copyright lawsuit for an online copyright infringement, you must follow the procedures set forth in the DMCA as to providing the possible infringer with notice of their infringement ( Please see: http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=130 ). That website will then give the infringer your “DMCA takedown request” and the infringer then has the right to send a DMCA counter-notification saying that they are the real copyright holder. Thus, you may now see the importance of having your content registered with the U.S. Copyright Office.

Assuming that you have not registered your work with the U.S. Copyright Office, this is where you are stuck. However, having the registration in hand you can easily show that you own the content. And further, that if it is not removed you are ready and able to file a lawsuit over its illegal use. Be aware though that even the most basic copyright infringement lawsuit will cost upwards of $100,000.00 in fees and costs to litigate.

Depending on the amount of content you produce sending out DMCA take down notices can be overwhelming for a small content studio or webmaster. My advice is to hire a company such as Take Down Piracy to do so for you or your company ( Please see: http://takedownpiracy.com ). Since their inception they have sent nearly 11 million DMCA take down notices to all types of websites including Google. That is no easy feat but they do have an automated process that will not only send out the DMCA take down notices but they will also monitor the Internet for illegal infringement of your content. It is far more cost effective to have Take Down Piracy do this then doing it yourself or hiring a lawyer to do it.

Obviously I could spend pages discussing this one topic, however, the most important aspect to understand is that if you are going to produce content and put it on the Internet for sale you MUST register that content with the U.S. Copyright Office before you post it to your website. Also, hire a take down service such as Take Down Piracy to monitor your content and send out notices on your behalf. The actual DMCA take down notice has to be rather specific to have any legal validity. A simple email asking them to take down your videos will not suffice under the law. The combination of preregistering your work and using a take down service will help in protecting your content. However, no system is fool-proof. Your content will still get posted and it will still be infringed. That, unfortunately, is a fact of life with the Internet.

Whether you have a membership website, a free blog, a Clips4Sale store or distribute DVDs, protect your work and get it registered!

 

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