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Competition is Good, Copying is Bad
By S. 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
http://www.feedforall.com software for creating, editing,
publishing RSS feeds and podcasts. In addition Sharon
manages marketing for NotePage http://www.notepage.net a
wireless text messaging software company.