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Competition is Good, Copying is Bad

by: Sharon Housley

Copyright 2005 Sharon Housley

I've always been of the opinion that competition is a good thing. It encourages all of us to be better and make better products. While it might be true that imitation is the sincerest form of flattery, copying someone else's work is simply wrong.

We recently came across a competitor using our sales copy. The competitor was using a web graph showing the traffic on one of our sites, along with our sales copy to promote their competing application. Digging a little further, I realized that their competing application was, in both form and function, identical to our application. The competing program contained identical screenshots, custom program icons and our help documentation. While the code of the program was, in fact, different, it was clear that our copyright had been violated.

We are not the first company to have our copyright violated and once the initial emotional reaction passed, we took action.

Dealing With Copyright or Trademark Violations:

Who, What and Where
Before reacting, it is important to do homework and research the alleged content violator. Arm yourself with information. Determining the who, what and where will guide you in taking the appropriate steps.

Determine WHO is violating your copyright
Research the website: do a Whois lookup to determine the site's owner. The domain owner can be found by entering the domain into http://www.whois.com and clicking on the link that says "Whois Lookup". If the copyright on software has been violated, check the PAD file for the author and release date.

Determine WHERE the website hosting is located
Determine where the website is hosted. Web hosts located in progressive countries will be more cooperative in addressing copyright violations. After determining the webhost's location, check the host's Terms of Service (TOS) and Acceptable Use Policy (AUP) to determine the level of cooperation you will likely receive. More often than not, a physical address and detailed information on how to report an abuse claim will be found in the webhost's terms of service.

Determine exactly WHAT violations have occurred.
When determining if a copyright violation has occurred, it is important to go back to the question of what constitutes a copyright violation.

Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of �original works of authorship." This work can be literary, dramatic, musical, artistic, or similar intellectual works. Copyright protection is available to both published and unpublished works. It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. It is important to note that ideas can not be copywritten, and while it may be morally and ethically questionable, cloning a software application is not a copyright violation, yet copying a helpfile is a copyright violation.

Copyright protection exists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. Evaluate the violator's work to determine if text, graphics or any of the program or website's artistic qualities are the same as your creative works. Print hard copies of any documents and save electronic versions of web pages and executables. Capture screenshots of offenses, save documentation or the Help file that contains any duplications of text. Enter the URL of the offending website into http://www.archive.org to see the website's history and determine a timeline during which violations occurred. Look and feel can be subjective, try to focus on obvious or flagrant violations. Copied text or Help files is obvious when filing a complaint with web hosts or other third parties.

What is Next?
If you feel your copyright has, in fact, been violated there are a number of steps that you can take. Contacting third party service providers is a good starting point. Make a list of the providers with whom you can contact to report the violations.

1. Hosting
2. Online Ordering
3. If Software, Download Sites
4. Associations or Organizations

Aside from service providers, consider using existing relationships with parties who have a mutual interest or relationship with the other party. Often, knowing key people can result in a rapid response and increased dialogue with the purported offender.

Send simultaneous emails to each of the parties identified. Include details of the violation; using a PDF that displays screen captures or copies of text violations with website pointers is helpful. In the email, explain the action you wish to occur. If you want the web host to remove the website, say so. Also, ask that they keep you apprised of the situation.

In most cases you will receive responses from webhosts or registration services that require you to provide additional details so that the infringement can be investigated. It may seem obvious to the copyright holder, but the web hosts typically have a contractual agreement with their clients and are legally obligated to research any infringements before removing hosting or registration services.

Send a Cease and Desist letter and an email detailing that a copyright has been violated, include a reasonable deadline by which the offending copy or application should be removed. It is not necessary to provide the offender the details of the violation, as it is likely they are already aware of the offenses that have occurred. These actions will generally open a dialogue with the offender. If the offender ignores requests to remove the material that infringes on your copyright, pursue action with third party services. This will likely get the offender's attention.

Artists, developers, and writers all work hard to create unique material and copyrights should be respected by all.

About the author:
Sharon Housley manages marketing for FeedForAll software for creating, editing, publishing RSS feeds and podcasts. In addition Sharon manages marketing for NotePage a wireless text messaging software company.

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