Protecting your copyright in a digital world
Hi. I’m Haje. I’m a writer and a photographer. I am probably not the best writer in the world, and I’m certainly not the best photographer in the world. And yet, I make my living as a writer, which means that I’m good enough that quite a few editors and publishers out there think that it is worth paying me money to write.
A lot of my writing goes into magazines and books, but I also do a lot of writing for free, especially here on Photocritic. Why? Well, I have a lot of words in me which are pining to escape, and I rather like having an outlet where I am my own editor: I decide what gets published, what gets said etc. And I take a perverse pleasure from looking at the statistics. Put together, my top 3 most-read articles (smoke photography, macro photography and top 50 websites) have been read more than a million times. That’s a lot of people reading what I have to say about photography.
Of course, whilst the content on Photocritic is ‘free as in beer’ for my end users, I do enjoy some benefits from running a moderately successful blog. My books are selling quite well, which is at least in part because people become aware of me and my blog. I make enough money via Google AdSense to pay for my hosting costs and to buy a bottle of beer every few weeks… And, well, I enjoy the fact that people are reading and commenting on my stuff: Without my blog, I wouldn’t have nearly as big an audience, and I enjoy the feeling of being ‘on the pulse’ of the photography community across the internet.
When people steal my content on the internet, I get very angry. At some point, I decided to fight back. This post explains why and how.
You’re not just going to rant, aren’t you?
Well yeah, pretty much. Sorry. But I’ve learned a lot from fighting copyright theft throughout the years, so if you want the actually useful advice, scroll down to the picture which reads ‘USEFUL ADVICE’ in a crazy blue hand-writing font. Scroll down. You can’t miss it. Crazily enough, that’s where the, er, useful advice starts.
What is copyright?
I know that there are a lot of people who are fiercely against copyright – who feel that music should be freely available, that all software should be downloadable, and that people protecting their copyright are devils. If you are among those people, you’re probably not going to like this post much, but stick with me – or at least read ‘How copyright infringement harms me’, below.
Copyright is really quite simple: Whenever you create something, copyright is also created. This happens completely automatically: you don’t have to register your copyright, you don’t have to stick the silly little © symbol on your work, and you don’t have to stand next to the master copy of your copyrighted work with a katana and a grim look on your face to make people understand that something is copyrighted. In fact, it’s usually more correct to assume that something is copyrighted.
Whilst most of the words I’m typing now are in the dictionary (unless I mispell them, in which case they wouldn’t be in the dictionary, but that’s a different point altogether), the order I choose to put them in is my ‘creation’. This creation is something that belongs to me: I have the right to decide who gets to use these words, for what, and under which conditions. I can decide that everyone who reads it would have to give me a cookie or a copy of Wired magazine, for example. Nobody would, of course, but that’s not the point: I get to decide.
I am creating something that is my property, and if someone decides to copy this and upload it elsewhere, my property is being ’stolen’.
There are ways of losing your copyright, but (in the UK, at least) all of them involve signing a piece of paper. Your work contract, if you are a journalist, might assign the work you produce to the copyright. Wiley Publishing published my first book, but I have a contract which stipulates what they are allowed and not allowed to do with the words I have written, and how much money they owe me if someone decides to make ‘Macro Photography: The Movie’. (No, seriously. Movie rights is part of my contract.)
If my good friend Maxwell Lander (link not always safe for work) asked me nicely if he could use one of my articles on his site, I can grant him permission (in effect, I would be extending a licence to his site), or deny his request. The copyright would still be mine, so if someone found my article on his site, and wanted to re-use it elsewhere, they would have to come back to the copyright holder (myself) to ask for permission before re-using it.
Copyright vs. other types of theft
The problem with copyright ‘theft’ is that it isn’t analogous to other types of thieving. If you were to steal my laptop, it is easy to understand why I would be upset: I don’t have a laptop anymore, and you have my laptop: You have clearly deprived me of something that used to be ‘mine’. Short of going all Proudhonesque, I think most people can agree that it’s ‘wrong’ to take something which belongs to somebody else. Copyright is often more difficult to understand for people.
If I have bought a copy of Mark Helprin’s Refiners Fire, and I’ve finished reading it, you might ask me to borrow it. I’ll lend it to you, of course, because I think everybody should read Refiners Fire. As far as Helprin is concerned, nothing bad has happened: I have bought the copy of the book, and I’m allowed to do whatever I want with it. I can set it on fire. I can read it every week for the next 15 years. I can give it away via BookMooch, sell it on eBay, or lend it to my friends, if I want. No problem here.
If I have bought a copy of The Decemberists’ Castaways and Cutaways, I could do much of the same: I can lend it to my housemate, sell it to a friend, or throw it away when I’m tired of it. I can even transfer it to another medium: At the moment, I’m listening to that very album on my laptop, where it lives in glorious, high-quality M4A format. The ‘loophole’ here is that I still have the CD: I can see it from here. If I were to sell the CD, however, I’d be in trouble: The CD is the ‘licence’ for me to listen to the music.
In both the above situations, I have made a physical purchase. If I were to photocopy the book for a friend (never mind that it would probably be more expensive to copy the book than to just order another copy from Amazon or something), I’ve made a transgression. If I were to give a copy of the CD, I’m in the wrong. It’s pretty easy to understand, too: When I make a copy of a CD or a book, I’m depriving the artist/writer of royalties. As a (struggling) writer myself, I can see how that is upsetting.
Where it gets more complicated, is how I routinely give away my content for free (you’re reading my blog now, aren’t you? Did you pay? Of course not, and I don’t expect you to), but still be upset when someone steals it? You can’t steal something that’s free, can you?
How copyright infringement harms me
I'm the guy on the left. That is my angry face. I don't make my angry face too often, but people nicking my content might see it...
There are many ways you could be in infringement of my copyrighted content: Turn it into a book and sell it under your own name, and chances of me finding out are very slim. Print out copies of an article for your photography club, and there’s no way I would ever know. And still, I wager that most people would agree that the former is worse than the latter. Why? Because now someone is making money off the back of my hard work. If it turns out that what I am writing here is worth money, then I should be the one benefiting from it, right?
Most of the time, infringements happen when someone takes one of my articles and posts it to their own website, either manually (by copying and pasting the text from my site) or automatically (by taking the RSS feed and showing it on their site in its entirety). This means that my articles show up on another site, which harms me in several different ways:
SEO – I have spent a fair bit of time (and some money) ensuring that Photocritic is designed and developed to best practice Search engine optimisation (SEO) rules, which, in turn means that I rank better in the search engines. There’s no big secret to how to do this – I wrote a separate article about making google love your photography site, in fact.
One of the things that influences your rankings is content duplication. In theory, when people take my content and put it elsewhere, it dilutes my chances of people finding my site. This means that I get less traffic to my site, which in turn reduces the benefits I get from posting my articles for free. The other sites probably don’t promote my book, they don’t give me their advertising money, and they don’t make me feel like a super-hero.
Cold hard cash – I don’t make a lot of money off this site. Most months, I only barely manage to pay for my hosting costs for my server, domain, etc.
Control and reputation – If it turns out that I write something that is incorrect, I am relatively likely to correct it. Imagine if I wrote something that was completely wrong, and might actually damage your camera – if that were to happen, I would immediately post a retraction, a correction, and make people aware of it over Twitter etc.
However, if someone has copied the article to elsewhere, those articles would remain out there – some times, with my name attached… and if someone follows that advice and breaks their camera, what would happen then? I would feel terrible, which is bad enough, but it also puts my reputation at risk.
Cross-marketing – There’s a picture of my books in the sidebar of my site. Every time you see my site, you see a picture of my book. You may not buy it. You may never even notice it. But the next time you’re in a book shop, you might spot it. You might remember it. You might buy it. And for every book I sell, I’m likely to be contacted by a publisher to be able to write another book.
Principle – Many of the people who steal my content don’t do it out of malice. Often, they just get really excited by something I have written, and want all their friends to see it, too. It’s flattering, in fact, but in the process they break the law and upset me. Often, a quick e-mail is enough to help them realise why it upsets me, and the content vanishes quickly. I even had someone send me a lovely box of chocolates and a post-card by way of apology once.
There is a second group of people who nick my content though: The ones who do it to make money. People who systematically steal other people’s content in order to try to get a little bit of traffic from search engines, which they then monetise in one way or another. Affiliate sites selling photo equipment, for example, or sites that simply want to run advertising on my content. Or even unscrupulous photographers who want extra traffic to their site to try and sell their photographic services.
This hurts me in two ways: not only am I competing against my own content in the search engines, but if someone clicks on their adverts instead of mine, this hurts me in the wallet, too: The $0.0001 per click that I would have gotten goes to someone who willfully breaks the law. It’s not about the money (I’m not poor enough to start a fight every time someone steals a fraction of a penny out of my pocket), but about the audacity of doing that, and thinking you can get away with it.
But you have an RSS feed! Isn’t that just begging for it?
Actually, never mind the previous picture. This is my real angry face.
For the longest time, I was running a truncated RSS feed: Basically, you see the first 100 words or so, and nothing else, you’d have to click on the link to come read the full article. Then, a while ago, I had a few people e-mailing me, asking me very nicely if I couldn’t please change it to the full RSS feed, because they preferred reading my site in the feed.
I looked into it, and decided to go for it, for several reasons: I could add advertising to the RSS feed, so in theory I wouldn’t be out of pocket (in addition, fewer readers on the site means, in theory, less bandwidth costs – but that’s moot: I’d rather pay the costs and have more people on my site). In addition, I’m a bit of a geek, and I love Google Reader – I want to be able to catch up with things that way, without incessantly loading up more pages.
A few people immediately started using my RSS feed, piping them into other sites, and essentially creating a clone of my site. They mistakenly thought ‘Hey! He’s got an RSS feed, so it’s okay to syndicate his content’. As we discussed above, in ‘what is copyright’, that’s not the case at all: I might leave a copy of my book on a photo copier machine, but that doesn’t mean I’ve agreed that people can copy it at will.
Think about the examples from the beginning of this article: Making a copy of a 500-page book is a lot of effort and costs a fair whack of money, so people are unlikely to do it. Making a copy of a CD is a lot easier. Scraping my site is even easier, and using my RSS feed to nick my content is easier still: but just because it is easy, doesn’t mean it’s legal.
My RSS feed has a copyright notice in it which currently reads:
Please note that all Photocritic content is © 2001-2010 Kamps Consulting Ltd. This RSS feed is provided for personal, non-commercial use only.
If you are not reading this material in your news aggregator or RSS reader, the site you are looking at is guilty of copyright infringement. If you spot this anywhere, please contact legal@kamps.org so we can take legal action immediately.
As we said: As the copyright owner, I’m fully within my right to create all sorts of outlandish conditions of use of my own content. In this case, the only conditions are ‘personal use’ (so, don’t distribute it on- or off-line) and ‘non-commercial’, (so, don’t try to make money off my content).
From my perspective, I’m not all that fussed if people e-mail each other copies of my articles: As long as I am not competing against myself in Google et al, it’s not a fight I’m likely to find worth fighting. The great thing about most RSS readers is that they are ‘closed communities’ – Unless you are logged into Google Reader, you can’t see any feeds. This means that search engines don’t index RSS readers – as such, they are not in competition against me for search engine traffic. If someone re-publishes my content on their site, that’s a different matter altogether.
How can you deal with copyright infringement?
Okay, enough ranting. Time for some actually useful advice.
Finding infringing content
Unique strings of text – It turns out that most people who nick my content with malicious intent are doing so via the RSS feed. Probably because, in addition to being immoral, they are lazy. I decided to turn this to my advantage: I inserted a unique string and a date-stamp into my RSS feeds.
In theory, because this unique string only exists in my RSS feed, it should never show up in Bing, Yahoo, Google or, well, anywhere on the internet, really. If/when it does, I know someone is doing something they aren’t supposed to. Searching for this unique string should ideally result in zero search results. Invariably, however, it never does.
Copyright web services
Apart from inserting a unique string, you can use a service like Copyscape to scan for infringing content. Their Copyscape Premium service is fantastic: Point it at your site map, and for only $0.05 per page, it will take all your pages and compare them to the internet. They score your content against other content. High-scoring content obviously is likely to be plagiarised or infringing in one way or another, so you can take action.
Of course, Copyscape only works for textual content. For photographers wanting to track whether their images have been ‘borrowed’, there is Tineye, and their more hard-core PixID service.
Dealing with infringing sites: Start easy!
If you think that someone has used your content by accident, or out of ignorance, there’s no point in chucking the book of the law at them. A friendly e-mail (cc’d to yourself so you remember to follow it up in a week or so) is usually more than enough to get them to take the content down.
I have found that the number 1 reason for the ‘friendly e-mail’ approach failing is that there isn’t an easy way of contacting the owner of the site… I’m not being difficult, but if it takes me more than about 10 seconds to find the contact e-mail address (check the header, sidebar and footer for anything that reads ‘about us’, ‘contact us’, or similar) or a feedback form, they’ve already wasted enough of my time. On to step 2:
Finding contact details
One of the big problems with many websites is that it is difficult to find out how to contact people. If their ‘About Me’ page or ‘contact us’ pages are absent, broken, or just hopelessly convoluted to use, you have to get clever. I tend to use a site called Domain Whitepages, which will give you 3 pieces of information: Who registered the domain, Who is the domain registrar, and who hosts the domain.
The person who registered the domain is usually the person you want – but many people have made this information private, or it might be out of date.
Your next point of call is the web host. These are the people who own and run the physical server on which the website is running. Look up the host’s website, and do a search for ‘copyright’ and ‘dmca’. If you can’t find either, look for ‘abuse’ or ‘report an issue’. Most web hosts have a mechanism for contacting them with abuse-related e-mails. If you sent a DMCA notice (more about that below) to the host, they will generally respond extremely quickly – I often had responses within an hour – anything longer than 12 hours is quite rare.
If you really can’t figure out who is hosting the server, your last option is to go for the domain registrar: This is the people who have registered the internet domain (like ‘photocritic.org’ or ‘google.com’). If you have to serve a DMCA notice to them, things will take a little bit longer, but if they can’t contact the owner, they’ll pull the plug on the whole domain, which tends to get the owner’s attention really quickly.
Fighting back with the DMCA
After your e-mail, the Digital Millennium Copyright Act – or DMCA – is going to be your second response to any issue of copyright. The DMCA is an US piece of legislation which doesn’t apply in any country except the USA, but I’ve sent DMCA notices to all sorts of countries (including, interestingly the UK, although the appropriate document in this country would be a ‘Notice and Take Down, or a NTD document), and while the legalese on the DMCA notice might be incorrect for, say, Germany, copyright law tends to be similar in most countries, and they’re not going to split hairs over receiving the wrong form: The important thing is that someone is breaking a law, somewhere.
To use a DMCA notice, you need the following: Your details, the details of the original and infringing content, and two particular snippets of legalese which swears on pain of death (ok, not quite – but nearly) that you’re convinced that you are in the right and they are in the wrong. Below is an example of the form letter I have been using.
Example DMCA notice
I have been using the following format for my DMCA notices to great effect:
[your address]
[today's date]DMCA Notice of Copyright Infringement
Dear Sir or Madam: Upon a routine copyright check, I discovered that the example.com site infringes on my copyright.
The copyrighted work at issue is the text and images appearing on my site here:
- http://photocritic.org/nude-girlfriend-photography/The URLs infringing on our copyrighted material include:
- http://example.com/nude-girlfriendPlease ensure that the infringing content is taken down within 48 hours.
You can reach me at [e-mail address] if you require 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 of an exclusive right that is allegedly infringed.
[my signature]
Mr [my name]
If the person you are sending the notice to demands the notice to be sent in by fax (surprisingly many do, actually), check out Interfax – they let you e-mail them a PDF document, and they fax it on for you. Fantastic, because, well, who even has a fax these days?
In the above, it is important to add your full mailing address near the top of the document. Create a list of all the article originals, and then the corresponding list of the articles on the infringing site.
First off, send this to the contact e-mail for the site. If that fails to get the content removed, send the same thing to the web host’s copyright or abuse team a week later. If that fails again, send the same thing to the domain registrar after another week. Do add a note to the letter stating whom and when you sent the notices to before, because the host might want to know before they decide to shut down a server.
But… Does it work?
Here, have a random photo I took this week-end. I'm quite proud of it. And this post is nearly 4,500 words long or so, so I figured you needed a break for a few seconds. Enjoy.
The DMCA form is incredibly effective. In the past year, I have sent out around 50 formal notices to people infringing on my copyrighted content, and all but two of these infringements have been taken down. One of them is in Vietnam (which doesn’t have any meaningful copyright legislation, so I’m out of luck, basically) and India (which does have legislation, but is notoriously lack at enforcing it, and the site owner is simply ignoring me. Particularly annoying because it looks like it might be a pretty high-profile site). I am still looking into how I might convince them to take the articles down, but I fear it might take more time than it is worth to me.
Out of the fifty or so, the hosts deleted the articles most of the time. Some times they placed a block on the pages (so the pages would result in a 403 forbidden page), some times they deleted it from the database (causing a 500 internal server error when trying to access the page), some times they shut down the whole site (showing a ‘if you own this site, please contact the host immediately’ message), and other times they found more elegant solutions.
In at least three cases, the site owner never contacted the host, and the whole site was taken down. In one case, the domain registrar decided to take the domain name offline, which means that while the domain itself is still available via its IP address, most of its users were unable to get to it.
What if the DMCA notification doesn’t work?
Excellent question. You could seek further legal help, but be warned: things often get complicated really quickly: The person infringing might be based in Romania, using a server in Russia on a Chinese domain name. If that happens, you’ve drawn the short straw: Where do you begin?
The best approach: If there is any aspect of the business which is operated out of the US (Say, they use Google Adsense, in which case, fill the AdSense DMCA complaint – the content will continue to exist, but at least you can send a message). Especially check the domain registrar – you’ll often find that even ‘foreign’ domains can be registered via an US registrar, and they should be susceptible to a sternly written DMCA notice.
From personal experience, I’d say that the DMCA approach is effective in well over 90% of cases, and I decided I didn’t have enough energy (or hours in the day!) to try to go beyond that.
What if there is a particularly rampant infringement?
In theory, you could start a lawsuit whenever someone steals a single piece of content from you. In practice, you’d me mad to do so, and honestly, it is a lot of hassle to go to court. Sometimes, however, you come across a case where you can’t see any other option.
I’ve had a couple of cases where the site in question wasn’t just copying my content, but went very, very far beyond that as well. One of them had ‘borrowed’ around 50 of my articles, the other one had systematically ‘borrowed’ every single one of my articles, all the way back to the start of Photocritic – yes, nearly 400 articles.
Let’s just say that I thought they were taking the proverbial piss. So, in addition to my standard DMCA letters, I included invoices for unauthorised use (number of articles multiplied by how much I would have charged to write those articles as a freelancer) with the letter and started talking to a solicitor. I can’t go into details about either of the cases, but suffice to say that both companies ended up paying significant amounts of money for their infringements.
Dragging people to court is not necessarily an approach I would recommend: litigation can be very expensive, but when things get just a little bit too silly, getting the legal system involved early on can ensure that people sit up and pay attention.
Disclaimer
I have rudimentary legal training in UK media law, but my training is several years old, and you’d be insane to take legal advice from some random bloke off the internet anyway. Nothing in this post is meant as actual legal advice – talk to your solicitor, that’s what they are there for!
My day job, if it can be called that, is being a writer. I've got one book out there so far and it's awesome, so go ahead and buy a copy! It's available from 
In front of you, five hyperactive men with guitars, drums, and microphones. Behind you, five thousand fans. In your hands, a camera... You're going to need more than just a little bit of good luck to pull this one off. That's where this book comes in.
Take a Canon EOS 450D. Attach a Canon 50mm f/1.4 lens. Hit the streets of London. See what happens.
Insights, suggestions and comments
Great read Haje. Last week I was experimenting with some blog based tools to fight back against scrappers. I let some tests run over the weekend and no luck in finding a proper solution. Relying on DMCA notices work, but do take time. I long for a solution that disables blatant theft of content. If I find anything I’ll be sure to keep you posted.
How do know or find out if someone is using your content?
Haje, this is a great and practical post, very informative.
I have taken the liberty of linking to it from my blog – hope that dosen’t trigger te lawyers :) Only a link nothing copied, promise!
I follow your blog with interest and appreciate your guidance here as a photographer myself
Great article! One idea – maybe the best (for you) way to respond to your notice would be to replace the infrigement by a link back to the original at your site.
I don’t understand why people copy articles – that’s a waste of their disk space while only linking to the original is almost equally valuable. And if they ask you for a permission to include a short quote with the link, I have no doubt you will agree, and it will improve search engine ranks of both sites…
Honza: I completely agree. From my perspective, the ideal solution would be if someone wrote their take on the article, combined with a link to my original article. That way, they add additional content (an opinion) to my article, whilst also adding further traffic to my site. Tell that to the site-scrapers, though…
I doubt this post will be approved but I want to share as someone who was recently served a DMCA notice by Haje. It wasn’t sent to me directly but to Tumblr, who then removed the content then Tumblr notified me of the removal and why.
First, let me say in the outset that I am in no way advocating ripping off an artists content, however you want to label it. It’s unethical and simply wrong.
In the section regarding RSS, I feel that there is a gross generalization about readers who share articles with services like Google Reader. As it’s worded, the article seems to imply that if you share with these services you are trying to “clone” the sight and subsequently generate revenue from that “clone”. Again, this is a gross generalization and highly inaccurate. As it happened to me, I clicked the Share button in Google Reader and I have a Tumblr site that collects the shared links. (Contrary to the screen shots provided, I’m doubtful Tumblr included the entire article.) The intent was to share something that I thought was worthy to be shared, not to somehow gain a profit from it. I know ignorance and intent of the person who shared the story won’t hold water in the courts and I’m sure I’m probably not going to find many sympathetic ears here but I’m of the opinion these kinds of strong-arm RIAA style tactics against the casual reader only does harm to the readership.
Perhaps I’m being too emotional or irrational, but as a “regular guy” and wannabe photographer, getting the CDMA notice then to see this article, it feels like a sucker punch and cheap shot.
a.bird – Why wouldn’t it be approved? You underestimate me, kind sir.
Anyway – I think you’re illustrating very well one of the trickier parts of DMCA / copyright protection: People who end up infringing on copyright by accident, without any intention of malice whatsoever. On a personal level, I think I got it wrong in your case – A simple e-mail directly to you would have been a more polite way of requesting to take the content down. It’s clear that you’re upset, and I’m actually a big fan of your Tumblr stream, so I regret the way I ended up serving a DMCA notice directly to Tumblr.
It illustrates another point as well though: I found another 20 infringements yesterday, and have to make a choice: Do I spend a lot of time analysing each case to see whether or not I should be polite, or should I just send out 20 form letters and be done with it? Yesterday, I chose the latter, which upset someone who is (or, by now, possibly ‘used to be’) a Photocritic reader. Lesson learned, I’ll have to spend more time thinking about how to approach people who make accidental infringements.
On the point of RSS feeds and re-publishing: It took me a while to realise how you actually ended up re-publishing the content. (What Aaron did, basically, was to click on a ’share’ button within Google Reader). Whilst Reader won’t display the blog posts to the world at large, the ’share’ function works differently: It appears that the feed gets passed on to a third-party site, in this case Tumblr. Tumblr then parses the feed and posts a short version to Aaron’s feed – but in this case, it posted the full version via a different template, which I found via the unique string embedded into my RSS feeds.
This raises an interesting question: Are services like Tumblr, who have a (semi-)automatic mechanism for re-publishing content on rocky ground legally? I would argue so, because their mechanism enables (or should I say ’causes’) people to unwittingly commit copyright infringements; but then, Tumblr is an awesome service in general, and on the whole trust them to not be lame about stuff like this – so in a way, both Tumblr and a.bird made a minor mistake each, which resulted in an infringement I had to react to.
Finally, I suppose I should point out that this article has been several months in the making – it’s a coincidence that it got posted the same day as 20 people were served with DMCA notice – sorry if that felt like a ’sucker punch’, most certainly not my intention.
Best,
~ Haje
Haje,
Haje,
Thanks for reply. Like you pointed out, I think it was about the timing of the notices being served & this article being published. Imagine my surprise to see that article after our congenial email conversation. That’s where the “sucker punch” feeling came from. You still have a reader in me because the content is just that good. In the mean time however, to cover my own butt, I’ve removed your RSS feed from my Google Reader feed. I don’t want to have a repeat of what happened here. I hope you are able to resolve the code issue with Tumblr (or where ever it lay) so that both the reader who shares your content & you can benefit from the traffic to your site.
Now that that’s done, I’m curious about your thoughts about Creative Commons?
Share your wisdom