How to respond to plagiarism and copyright violation (US version)

In PR, we talk a great deal about content marketing, about creating content that’s helpful, useful, and relevant. Becoming minimally competent at content creation takes time; becoming good at it takes years, and mastering it takes a lifetime. However, one of the most backhanded compliments you’ll receive as a content creator is the day that someone steals your work through plagiarism. While imitation may be the sincerest form of flattery, it’s also incredibly damaging to your business and your content marketing efforts. Plagiarism not only hurts your brand, it damages things like SEO ranking factors, which has a real economic impact on your business. Let’s look at how to deal with it.

Disclaimer and Disclosure: I am not a lawyer. This blog post does not constitute legal advice. If you’re facing a copyright situation that requires legal counsel, I strongly recommend that you Google for a lawyer. Don’t blindly rely on the Internet for things that affect your business!

First, in order to issue a claim of copyright violation, you have to be sure that your copyright was actually violated. I strongly recommend reading the 7 page guide by Harvard’s Berkman Center for Internet and Society titled “A Practical Guide to the Fair Use Doctrine in American Copyright Law” if you’re operating under US law and the infringing party is governed by US law; if you’re operating globally, the Berne Convention for the Protection of Literary and Artistic Works applies to signatories of that treaty. In some cases, your rights may be violated in your nation by an entity in a foreign nation that doesn’t honor the Berne Convention, in which case you have relatively little legal recourse. For the rest of this post, I’ll be working from the perspective of dealing with a United States entity – seek local legal guidance for your nation’s specific laws if the infringing party is not governed by the laws of the United States of America.

In the United States, most copyright infringement claims online are handled under the jurisdiction of the Digital Millennium Copyright Act of 1998. The standard procedure is to send a letter to the publishing entity that has violated your copyright, requesting a takedown of the material and providing evidence of your claim. If they don’t respond, your next step is to send the takedown notice to their hosting service or Internet Service Provider (ISP). Because many websites and publishers may claim protection under 17 USC Section 512[C], that is the standard of proof we need to meet. Here’s what the law says about what must be in the takedown notice (17 USC 512[C][3][A]:

  • (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  • (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  • (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  • (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

These 6 elements should be in the letter you send to the publisher of the infringing materials and if they don’t respond, to their ISP.

  • On Section i, an email that’s sent from your corporate domain with your electronic signature is sufficient, though certainly if the claim is large enough or bad enough, you may want to send a paper certified letter.
  • Sections ii and iii require you to identify positive ownership of the material you hold copyrights on and the infringing material along with a way to locate it.
  • Section iv is your contact information, which again should be covered by an electronic signature.
  • Section v requires some homework to ensure that you haven’t inadvertently given the infringing party a right to use the content or that its use isn’t covered under Fair Use Doctrine.
  • Section vi is a statement that the information you have provided is correct and you have a lawful claim as the copyright holder or an authorized representative of the copyright holder under penalty of perjury.

Here’s an example I sent out recently on behalf of SHIFT Communications to a website that had one of our blog posts copied almost word for word:

ACTION REQUIRED: Notification of DMCA copyright infringement on SocialMediaToday.com - Sent Items

A couple of things worth pointing out – notice that in section ii I authenticated that we were the original publishers by linking a tweet? Social media is the new postmark. You can’t backdate a tweet or a Facebook post, so providing a link to when you tweeted about your blog post or other digital content is essential for proving the timeline, that your content appeared on your site first on one of your owned media accounts. The language used in the paragraphs for sections v and vi is also important – use the wording providing in the DMCA and don’t mess around with it.

I want to reiterate again that I’m not a lawyer and this blog post isn’t legal advice you should blindly follow like a cookbook recipe. It’s what I read about the law and how I handle this sort of thing for SHIFT Communications, but if it were a bigger violation than something like a copied blog post, we’d lawyer up instead of just sending an email.

Christopher S. Penn
Vice President, Marketing Technology

Work at SHIFT

Posted on July 12, 2013 in Content Marketing, Legal

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About the Author

Christopher S. Penn is an authority on digital marketing and marketing technology. A recognized thought leader, author, and speaker, he has shaped three key fields in the marketing industry: Google Analytics adoption, data-driven marketing and PR, and email marketing. Known for his high-octane, here’s how to get it done approach, his expertise benefits companies such as Citrix Systems, McDonald’s, GoDaddy, McKesson, and many others. His latest work, Leading Innovation, teaches organizations how to implement and scale innovative practices to direct change. Christopher is a highly-sought keynote speaker thanks to his energetic, informative talks. In 2015, he delivered insightful, innovative talks on all aspects of marketing and analytics at over 30 events to critical acclaim. He is a founding member of IBM’s Watson Analytics Predictioneers, co-founder of the groundbreaking PodCamp Conference, and co-host of the Marketing Over Coffee marketing podcast. Christopher is a Google Analytics Certified Professional and a Google AdWords Certified Professional. He is the author of over two dozen marketing books including bestsellers such as Marketing White Belt: Basics for the Digital Marketer, Marketing Red Belt: Connecting With Your Creative Mind, and Marketing Blue Belt: From Data Zero to Marketing Hero.
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