The DMCA and You

The Digital Millennium Copyright Act  or DMCA is the set of rules covering copyright in the digital age. It became law in 1998, and we’ll all agree that technology has changed since then. A group of high-profile artists and publishers has been lobbying for changes, most recently with a letter to Congress which they’ll also publish as an ad in some major political news sources. Taylor Swift, Paul McCartney, and the rest want changes to the DMCA because people are consuming more music than ever but artists are earning less.

We’ll be watching this with interest. We basically focus on following copyright laws, not changing them or defending them. But we have some experience with copyright issues.

Our first experience with copyright issues

First, we had the experience of producing a YouTube animation for a song performed by one of our clients. We got permission from the writer of the song and of course from the performers. We hired Sean Sallings and Chad Taber to make the little film. We posted it and watched as people enjoyed it.

Years later, the author of the song protested. YouTube acted quickly, shut it down, sent us warnings, etc. We contacted the songwriter, reminded him that he had given us permission, and received a firm reply: he had changed his mind, that’s all.

We forwarded the original email giving permission to YouTube, asking if that could protect us from being on the naughty list. They said that the songwriter had protested and that was that.

From this we learned that YouTube is responsive to artists who claim copyright violations. They respond very fast to complaints and they pull those videos down immediately, regardless of the circumstances.

Our second experience with copyright issues

Next, we got word from our graphic designer, Jay Jaro, that someone was using a logo he had created for a client on Facebook. We filed a complaint.

Facebook essentially said, “They’re not doing you any harm. They only have 37 Likes, for heaven’s sake. What’s your problem?”

This is the big thing that keeps copyright complaints from winning most of the time. You can’t just prove that you’ve been copied. You have to prove that being copied has done you some harm.

Cease and Desist requests are a pretty common experience in business. We see our content being used without our permission all over the web, and you probably do too — if you’re creating great content. We usually let it go. We also usually agree and remove things when asked, and so do the people we ask. When we get a complaint about a photo that’s in the public domain, or about an obvious case of Fair Use, we write back politely and explain why we disagree, and that’s usually the end of it. Most copyright issues can be solved in this way.

But the Facebook copyright violators were defiant. They trumpeted our objections as proof of their importance. They refused to remove that stolen logo. The clients, as it happened, were lawyers. We stepped back and I don’t know exactly what happened, but their Facebook page is gone.

What to do about copyright issues

We learned that being right doesn’t always mean you win. Especially if you can’t prove that your business is actually being harmed. Nobody is going to arrest the violator — and if you’re not ready to sue and able to prove you’ve been harmed, there’s not much point in pushing it.

So what can you do if you see someone taking liberties with your intellectual property?

  • Determine whether you can prove you’re being harmed. If you can’t prove it, forget it. You can point out that the violators are doing wrong, but if they don’t care and you can’t prove harm, you’re wasting your time. Sometimes it’s hard to give up, because the violators are doing something wrong and you may feel that they deserve to be punished. But you have to be realistic about this. Unless you have lots of resources, it’s probably not worth going after them.
  • Decide whether you can use that violation for good. Imitation, they say, is the sincerest form of flattery. Bands that can no longer make money from selling CDs can use those YouTube videos to get the word out about concerts and other new income streams. If someone is sharing your e-book and you can’t stop them, figure out a strategy that makes you sure you benefit from it. Partner with the bad guys if you have to. Or write about them and call them out for what they’ve done.
  • Think outside the box. There’s no specific suggestion here, because… well, all the obvious solutions are inside the box, not outside the box. Some musicians are still trying to stop free streaming of their music. Some are figuring out new income streams that don’t rely on selling songs, but instead rely on the marketing power of all those free downloads. Either way, it’s all about the strategy.

Almost always in business, it’s all about the strategy.

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