| How to Sue for Infringement of Digital Intellectual Property Dec 16th 2012, 00:00 Intellectual property infringement is widespread on the Internet, both because it's easy to do and because many people don't understand that some of their actions are infringing someone else's intellectual property rights. Infringement occurs when someone other than the owner of the intellectual property uses that material in a way that violates the rights of the intellectual property owner. Common cases of infringement include a person illegally downloading music from the Internet without paying the creator for it or using a copyright photo for their website or content from another site without permission. Suing someone for infringing on your digital intellectual property can force the infringer to stop violating your rights and can force them to pay you for your work, provided you're persistent and have the funds to pursue it. - Consider whether your intellectual property actually has been infringed. There are exceptions under different laws pertaining to copyright and other types of intellectual property. For example, some works may be covered by fair use, fair dealing or free use, such as taking a screenshot or a news report. Perhaps you forgot that you marked some of your work Creative Commons or copyright-free, or that you gave someone permission to use your work some time back without reneging it (or because you had no choice under an employment contract or law)––be sure that none of these things have happened. Also, there is still debate as to whether it's possible to copyright a tweet on Twitter or an update on Facebook––it'd have to be remarkably unique and creative to be protected as your original intellectual property.
- Ask first. Before spending a cent, ask the infringer to stop infringing your work. Send a politely worded email or message, or call them, and ask them to stop using your intellectual property without permission. In many cases, this can be enough to enlighten the other person that they're doing something wrong. Even more importantly, it lets that person know that you're aware of their misuse. If this doesn't succeed in changing things for you, proceed to the next step. In some jurisdictions, showing evidence of asking may be needed as mitigation of the harm to you, or as evidence that you have tried to stop the infringement but to no avail. Talk to your attorney if you're unsure how initial contact will impact your legal rights.
- Assume the best initially. It can be very easy to get into a lather after finding your work on another site, blog or forum. But remember that many online users honor the moral obligations not to infringe without recognition and will be embarrassed to find out they have done so. Often pointing out the error works wonders, as does being gracious enough to allow that person the opportunity to admit the error and fix it.
- Be open minded. Sometimes there may be a good reason to go ahead and give permission for using your intellectual property but only after exchanging an agreement setting out well understood terms that include your own limitations. Not everything has to end in a lawsuit and winner takes all. Be prepared to compromise if it serves your purposes too, such as increasing your exposure to blog readers or getting free advertising.
- Visit an attorney or intellectual property lawyer for advice. Intellectual property law is a complex and technical field of the law. As such, it requires in-depth knowledge of how the law works. Before you think about suing, get professional advice to see if there is even a legal ground to pursue your action with. The initial advice won't usually be free (unless you have a good lawyer friend happy to advise you gratis) but it will be money well spent as it could resolve the matter before even seeking to sue.
- While bringing a lawsuit against an infringer on your own behalf is possible, due to the complexity of intellectual property law, it is not advisable. See the sources below for a link to the American Bar Association's Intellectual Property section; similar bar or law associations exist in most jurisdictions.
- Consider where the infringement occurred, if you know. While the Internet can open up jurisdiction to the whole world, it may be necessary to seek advice from a lawyer or attorney in a country different from your own. And while it is now possible to be served virtually in numerous jurisdictions, even if you should succeed, getting compensation may be quite another story. Be aware that enforcement of intellectual property varies a great deal worldwide.
- How big and how valuable is the work that has been infringed? Courts are likely to be much more sympathetic to a huge theft of commercial intellectual property than to a spat between two bloggers. This isn't to demean the value of your blog content but it is a realistic viewpoint to take when assessing how worthwhile it is to chase the offender. There are less expensive ways of getting an offender to stop, such as asking the website to pull their content or even their user status due to infringement of intellectual property and letting others know to be wary of this person's online actions.
- Register your work with the proper government agency if you haven't already done so. Registration of some types of intellectual property is not required in order to have intellectual property rights to your work, but in most cases you must register your work as either a trademark, patent, or trade secret before you can bring a lawsuit. In the United States, copyright can be registered as well, and in some jurisdictions there may be some additional process protection available (ask your legal adviser for more details). In some cases, registering your work after you learn of infringement but prior to bringing the lawsuit is acceptable. Since many intellectual property claims involve determining who came up with the intellectual property first, make sure you pinpoint the date you created the work on your registration. This will help you prove your claim.
- Gather evidence of the infringement. Depending on what type of intellectual property was infringed and how it was infringed, you will need to gather different information about the infringement to give to your attorney so that he or she can build the case. Gather any and all evidence that shows that you own the intellectual property in question and that the other person or people have infringed on your rights. Evidence may include email discussions, messages, photos, dated screenshots, file notes, original files/drawings/photos, etc. You can help to reduce costs by putting everything in a chronological order for your attorney before giving it to him or her (if not, they'll do it for you, and charge you). Make a note of anything that you think stands out in particular and draw this to your attorney's attention.
- In the case of digital intellectual property infringement, saving screenshots of websites that improperly use your work is a good way to show the infringement.
- If your work was uploaded on a public site by someone other than you without your permission, make sure to capture a screenshot of the username or any other identification of the person who uploaded your work.
- Review your chances with your attorney and ask for an honest assessment. The time to decide to go ahead and sue should be one of certainty that you have no other alternative, that this is the right thing to do and that you're financially able to go through with it.
- Have your attorney file the lawsuit. After discussing your case with your attorney, if he or she thinks that you have a good case for a lawsuit, have your attorney file it. Be prepared for a long wait––lawsuits of this type are often time consuming, as well as costly.
- Keep passing on any new evidence supporting your case during the trial. Your attorney will figure out whether it is relevant or not.
- Consider settling out of court. Many intellectual property infringement cases settle out of court, and it is rare for an infringement case to make it to an actual trial. It is often in your financial interest to get the infringing party to settle the dispute out of court because intellectual property lawsuits are very costly and there is always a possibility that you will not win the lawsuit. Settling out of court avoids the high expense of a trial and still provides you with your intended result, which is typically financial compensation for the infringement and the infringer no longer using your work.
- What can be infringed? Almost everything online! Photographs, drawings, graphics, content, poetry, stories, video, artwork, sales photos, portfolios, cartoons, words you've posted, plans or drafts, music you've made, etc., are all potentially protected by intellectual property rights and therefore capable of being infringed where permission has not been gained.
- Be aware that a site does not have to display a copyright symbol to be protected by copyright. It is a good idea for you to do this as a wise reminder but even without the symbol, you are still covered. (There are still a few countries that didn't sign the Berne Convention, which is the international treaty that did away with the requirement to display this symbol. That aside, most countries are covered.)
- Brush up on your understanding of copyright and related law by reading the WIPO booklet Understanding Copyright and Related Rights at http://www.wipo.int/freepublications/en/intproperty/.../wipo_pub_909.pdf (PDF).
- You will always retain moral rights to your work, even if you've sold the copyright on, where moral rights are supported by law (this means most countries, as international treaties back up moral rights). Moral rights protect you from unfair attacks, mutilation or distortion of your works, or placing of your works into a light that damages your reputation.
- Copyright of your blog, website or web work will endure 70 years after your death if you're in the USA, America and a few other places. For many countries, the length of time that copyright endures is 50 years. An interesting fact not of much use to you if you're dead though! Of course, this does mean that so far, there isn't a blog or website on the planet free of copyright for the reason that the blog's author has been dead long enough!
Edit Warnings - Filing a lawsuit for intellectual property infringement without the use of a lawyer is usually not a good idea since intellectual property law is complicated and chances are high that you might make a mistake when pursuing the case that could cost you money and hinder your ability to continue pursuing the infringer.
- Suing isn't just financially costly––it can be emotionally wearing too, especially where the subject of the lawsuit revolves around your life and soul's creations.
Edit Things You'll Need - Trail of evidence (make both digital and hard copies for both yourself and your attorney)
- Original documents/images/music/files/sounds, etc.
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