IP for Your Business: 6 Steps for Protecting Your Content and Your Business

The SE Texas Record Dec. 21, 2009, 7:58am

By R. David Donoghue

It used to just be publishers, musicians and television/movie producers, but the Internet has made almost every business a content producer.

And every content producer eventually faces content theft, a reality made far more frequent by the Internet because the theft only requires the copy and paste function on a computer.

The first time a business realizes it is a victim of content theft, also known as copyright infringement, the business is often left feeling powerless, not to mention at a business disadvantage.

But with the following six relatively inexpensive steps you can use your registered copyrights to protect your content and generate consequences for stealing your content:

1. Register Your Copyrights

You have a copyright as soon as you create original content, but in order to use the federal courts to enforce it, you need to register your copyright.

Additionally, if you register your copyright within sufficient time of the work's publication, you can seek statutory damages.

Statutory damages are a legal replacement for your actual damages, which are often hard to prove and relatively low compared to legal fees for a copyright case. Statutory damages, however, can be as high as $150,000 per work.

2. Give Notice of Your Copyrights

On the first page of every copyrighted work or on every copyrighted Web page, you should print a copyright notice that looks like:

Company Name � 2009 (or the year or years the content was created). All rights reserved.

That single statement, properly placed, puts infringers on notice of your copyright, and, if your copyrights have been properly registered, allows for copyright infringement to be deemed willful making potential damages up to $150,000 per work.

3. Keep Track of Your Content

In order to prosecute infringers you need to be able to show the infringer had access to your content.

For Internet content you can use statistics software like Google Analytics. These software packages will tell you which IP addresses accessed your Web site and which pages were visited.

The IP addresses can then be used in some cases at least to identify companies or individuals that accessed your content.

If you are sending out digital content by the Internet, you can modify your subscription agreement or terms and conditions to allow you to track the use of the electronic file you send.

Tracking can identify electronic copying (forwarding) of your content. This is especially important if you sell subscriptions for your content and you have subscribers paying for a single subscription, instead of a more expensive group license, but forwarding the content as if they had a group license.

Along the same lines, make sure that any terms and conditions you have associated with the content, for example the terms and conditions of your Web site, are tailored for your content and not simply boilerplate language from another source.

4. Set Traps

The hardest part of making a copyright case is often proving the copying. A simple fix is adding something distinct or obscure to your content.

One option is to use a misspelling buried deep in your content.

There are two obvious downsides to misspellings: 1) if a content thief runs a spell check the misspelling can get fixed; and 2) a misspelling can make your business look bad.

If a misspelling does not meet your needs, consider something more subtle such as adding an obscure Latin phrase, removing a hyphen from a normally hyphenated word or choosing the British version of a word.

You can even consider using your business or product name in all of your content; many content thieves are not careful enough to remove the author's name from the content before stealing it.

5. Police Your Content

Turn the tables on content thieves. Just like they use the Internet to get your content at no cost, you can use the Internet to catch them at little or no cost.

Set up an automatic search, for example with Google Search, that will search the Internet daily for the special word or phrase you added to your content, or for a distinctive sentence in your content.

That way you can stop the theft almost as soon as it happens, and not have to wait until you stumble upon it or a customer alerts you to it, when you may have already suffered significant harm.

6. Take Action

As soon as you identify an infringement, investigate how extensive it is and pursue the infringer. You are free to immediately file a lawsuit, but you can save money and hassle by sending a strongly-worded cease and desist letter first.

Identify the copying, attach your copyright, and demand whatever corrective actions you want � whether it is simply removing the content, or removing the content and a cash settlement. And make sure to give a response deadlines.

A deadline shows you are serious and avoids unnecessary delay. But at the end of the deadline, you should be ready to file suit.

If you do not, you significantly weaken your position. Of course, you can always file your suit and wait up to 120 days to serve it on the infringer, which is required to prosecute your case.

And even after filing, you have time to resolve the case without spending significant resources on litigation.

R. David Donoghue is a partner in the Intellectual Property Group of Holland & Knight in Chicago, Ill. He may be contacted at (312) 578-6553 or david.donoghue@hklaw.com.

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Holland & Knight
131 S Dearborn St
Chicago, IL 60603

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