Competition is Good, Copying is Bad

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.

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