How to Respond to Auto-Generated Copyright Infringement Notices

What is copyright infringement? Am I being sued?

Copyright protection gives the creator of a work the right to control how the work is copied, distributed, displayed, performed and whether new derivative works can be made. In general, if you use someone else’s copyright-protected work without permission, that is copyright infringement.

If someone receives a notice of copyright infringement (usually in the form of a so-called “cease and desist” letter), that doesn’t necessarily mean they are being sued. Sometimes the copyright holder simply wants the alleged infringer to stop using the copyrighted material. Often, however, they also want compensation for the infringement. Requests can range from tens to tens of thousands of dollars. Until an action is filed in court, these letters do not constitute a a lawsuit. However, whether or not the notice threatens legal action, these letters should not be ignored.

While it used to be fairly rare for student media to be the recipient of cease and desist notices, that is changing. Technology now allows these C&D letters to be automatically generated and sent out without human intervention. Calls from student media receiving automatically generated demand letters began to trickle in a couple of years ago, but it’s now a pretty consistent flow, which — given the “easy money” to be made — will almost certainly increase.

Background

Congress passed the Digital Millennium Copyright Act in 1996 to address copyright infringement on the internet. Among other things, the act specifies how copyright holders should give notice to alleged infringers and enforce the takedown of their copyrighted work. The law also gives Internet Service Providers (ISPs) immunity for hosting infringing material if the ISP takes the material down and gives notice to the individual user who uploaded the infringing content.

The problem is that the DMCA was not designed to handle today’s technology. The act was passed with the assumption that copyright holders could review posts that potentially infringe, then send a notice after careful — or at least some — consideration. Yet, in 2017, an estimated four hundred hours of content were uploaded to YouTube every minute, far beyond what even a large team of people could manually inspect. Faced with this problem, many copyright holders have turned to technology for a solution.

How does the auto-generated notice system work?

While the process varies, new technology enables copyright owners to add metadata or embedded codes, often invisible to the naked eye, to their work before it is uploaded to the Internet. They can then use “crawler” programs (often called “bots”) to search through the internet for infringing uses of their copyrighted work. When these programs find a copyrighted work (like a picture) used on another website, the program automatically generates and sends a notice of infringement to whoever manages that site. (The notice first goes to the ISP (like AT&T or Comcast), who then forwards the notice to the operator of the infringing site. It is fairly easy to track down who is hosting or visiting different websites because whenever a device connects to the internet, both the device and the local router are assigned unique IP address.)

Notice and takedown requirements

To be legally effective under the DMCA, an infringement notice must:

Identify the copyrighted work that was allegedly infringed
Identify the alleged infringement with enough specificity that an ISP can locate it
Provide contact information for the copyright holder (address, phone number, email, etc.)
Provide a statement of good faith belief that the use of the material is actually infringing and is not authorized by the copyright owner or the law
Provide a statement that information in the notice is accurate
Have a physical or electronic signature (of the copyright holder or someone acting on their behalf)

Once the ISP receives the notice, it must:

Remove or disable the allegedly infringing material
Forward the notification to the alleged infringer, and
Take reasonable steps to let the alleged infringer know that the ISP has removed the material

The alleged infringer can send a counter-notification, which must:

Identify the allegedly infringing material that was removed or disabled by the ISP (and where the material appeared before it was removed)
Provide a statement of good faith belief that the material was not infringing
Provide contact information for the alleged infringer
Have a physical or electronic signature (of the alleged infringer)

An ISP must reinstate the allegedly infringing material between ten and fourteen days of the receipt of the counter-notification unless an action has been filed in court.

Can a notice really ask for $3,000 for one picture? It can’t be worth that much.

If the copyright holder can prove that they own a valid copyright, they can ask for much more than the market value of the work. By statute, a copyright owner of a registered work is generally entitled to damages between $750 and $30,000 per work (depending on what the court considers just). However, willful infringement can lead to damages of up to $150,000 per work. Even if the infringement is completely accidental and unknowing, copyright owners are entitled to at least $200 per work.

However, it’s important to keep in mind that just because the copyright owner asks for a certain amount of money, that doesn’t mean the infringer has to pay it. Often, initial requests ask for a much higher amount of money to make settling for a lower amount more appealing. (For example, one business reported being asked for $8,000 for the infringing use of one image on its website, and was relieved to settle for $3,000, still well above the market value of the image.) Researching the market value of similar copyrighted works (like similar stock images) is a good way to negotiate a fair price.

Problems with the system

Although this automatic notice system allows copyright owners to enforce their rights without having to personally comb through millions of websites, the system comes with plenty of flaws.

Broad Requests: The first issue is that the bots usually produce a constant stream of broad requests, generating too many notices for the ISP to actually review. For example, in 2014, automated notice systems generated 345 million takedown requests for Google, up from 100,000 in 2009. That is an increase of 344,900 percent. Although ISPs generally respond, some notices slip through the cracks.
Lack of Human Oversight: A huge issue is that the notices are usually sent without any human intervention. The bots are designed to detect the use of a copyrighted work on a site, and cannot check the context of the use to distinguish between legitimate infringement and non-infringing uses (such as a license or fair use). While many of the notices are sent to true infringers, a substantial number are inappropriately sent to non-infringing users.

Getty Images has gained notoriety for the frequency of its infringement notices and criticized for using legal intimidation to bully small businesses out of money. Multiple Getty Images customers have reported being sent an infringement notice, despite having purchased a license to use the company’s stock photos. Another example comes from Dr. Neal Krawetz, who runs a blog called The Hacker Factor. He was sent a copyright infringement form letter from Getty Images demanding $475 in damages, despite the fact that his use of the stock photos fell under statutory fair use.

Accused Infringers Rarely Push Back: Another issue with the notice system is that accused infringers rarely push back against the requests. The sticker shock of requested damages combined with the fear of expensive and potentially lengthy litigation leads many to opt for a settlement. Even if the alleged infringer has a valid legal argument, the cost of hiring an attorney or filing the case in court is usually not worth the price tag for small businesses or individual internet users.
Taking Advantage of the System: Because most users served with the infringement notice opt to pay out a settlement rather than fight the notice in court, some individuals and companies — often lawyers — are using this system to make easy money by sending out as many notices as possible, a practice known as “Copyright Trolling.”

Copyright Trolling seems despicable and the DMCA does offer some check on the practice. 17 U.S.C. § 512(f) provides that “Any person who knowingly materially misrepresents . . . that material or activity is infringing” is liable for damages. In other words, copyright holders need to genuinely believe they have an infringement claim to sue for it. Many courts have started cracking down on the practice copyright trolling.

In 2010, a group of attorneys who owned the copyright to a single video sent out hundreds of infringement notices for downloads of the video, demanding $4,000 per notice. The court estimated that the majority of users paid the settlement, and those who did not were met with litigation designed to coerce settlement. A judge shut the practice down, ordering the attorneys to pay $81,319 in damages for engaging in bad faith litigation, filing complaints without reasonable investigation and fraud.

Similarly, in 2013, the Court of Appeals for the Ninth Circuit stopped the law firm Righthaven LLC from copyright trolling, as the firm fraudulently claimed it owned the copyright to several newspaper stories so it could issue infringement notices.

In another particularly egregious case, a law firm was actually caught “seeding” its clients’ copyrighted works onto sites so that they would be downloaded by unsuspecting users who were then targeted with an infringement claim.

5. Scams: Unfortunately, because the threat of a lawsuit coerces many internet users to panic and pay a settlement, some unscrupulous individuals are using this notice system to run scams. In 2010, a number of small organizations received spam emails alleging that a New York law firm had filed a lawsuit against them for copyright infringement. In reality, the email notice contained a link that downloaded malware onto the user’s computer.

In early 2018, Facebook was met with a similar phishing scam, with users receiving a direct message that their account was being suspended for copyright infringement and asking them to click a link to clear up the mistake by inputting their personal login information for the scam artists to steal.

If you ever receive a notification that seems suspicious, do plenty of research to verify that you’re dealing with a real source. Do not click any links sent in these letters, as it could download harmful malware to your device and do not give out personal information.

What can I do?

If you haven’t yet received one of these notices, count yourself lucky — and do two things right now. First, alert your entire staff of the new copyright landscape. Hopefully, you already have policies in place that check for proper copyright clearances. Let everyone know you may now find those practices being challenged. Sloppiness in using copyrighted works will eventually come back to bite you. It’s no longer an idle threat — even for very small student media organizations. Second, conduct a copyright audit of your entire online presence (website and social media) to look for infringing material. Focus primarily on images, which seem to be the primary bot target. Go back at least three years (four would be preferable.) Obviously, this can be a huge, time-consuming pain. There may be more tech-savvy ways of conducting such an audit of which we’re unaware, but for now we are strongly recommending that student media take the time to manually review what they have published. If it’s not something the staff created, ensure the image is being used lawfully (valid fair use claim, license/permission, public domain, etc.) When in doubt, take it out.

If you receive one of these notices, pay attention but don’t panic. Here are some pointers on how to respond.

Remove the Material: If possible, try to stop the infringement. This could be something as easy as taking a picture down from a blog post and shows that you’re acting in good faith.
Research: Find out who is making the claim. Are they, in fact, the legitimate owner of the copyrighted work? Is this a scam? Try running a search for the form letter to see if other people have received something similar and find out how to contact the company making the claim. Try to figure out the fair market value for the work. How much does the business normally ask to use the work? How much are similar works going for?
Check Your Work: Is your work truly infringing? Did you ask permission, or just copy and paste from another source? Is it fair use? Fair use, discussed a bit more below, allows you to use a limited amount of a copyrighted work where you have a bona fide reason for doing so (which can include, for example, news reporting or reviews and critiques). A full discussion of fair use is beyond the scope of this article, but you can read more in the SPLC Guide to Fair Use.
Check the Statute of Limitations: A statute of limitations sets a cut-off point in time for particular legal claims. A copyright holder can only sue for infringement within three years of discovery. That is, the clock to file a lawsuit doesn’t start ticking until the copyright holder actually finds out about the infringing material (i.e. visiting a webpage that prominently displays an infringing image.) If more than three years have passed since the copyright holder found out about the infringement, they can no longer file a lawsuit for that infringement.
Respond in Writing and Ask for More Information: Sending an email is a good way to keep a record of what was said. Keep in mind the statutory notice requirements. Chances are the generated notice is a form letter and is missing some of the statutorily required information, like a statement asserting a good faith belief of infringement. At the very least, this often will get you in contact with a human being who can look over the details of the notice and might rescind the form letter.
Play the Student Media Card. It’s not a law-based excuse and won’t necessarily get you off the hook, but letting the claimant know that you are working on a nonprofit student-edited Web site with very limited resources may help your case. The same goes for being courteous.
Get Help: Whether your work is infringing or not, it is never a bad idea to ask for legal advice. Organizations like the Electronic Frontier Foundation (EFF) have networks of attorneys who are willing to help innocent internet users fight fraudulent claims of infringement. Particularly in the case of “copyright trolling,” legal defenses may be available.
DO NOT IGNORE THE NOTICE. Even if you feel that you have done nothing wrong, do not simply ignore the notice. In some cases, this can be interpreted as willful infringement, leading to higher statutory damages or even criminal penalties.

How can I make sure I’m not infringing copyright?

Here are a few tips to make sure you’re not infringing copyright

Ask Permission: Copyright owners can give permission to use their work. While it can be difficult at times to figure out who owns the copyright, that little bit of diligence can go a long way in protecting you from infringement. It’s always a good idea to get the permission in writing (even just as an email) and make clear how you plan to use the work.
Pay for a License: Many copyright holders will let you use their work in exchange for a fee. For example, Getty Images has thousands of photos available for purchase. You can also negotiate the price of a license down depending on how you need to use it.
Use Works in the Public Domain: Some creative works are not copyrighted or their rights have expired. These works can be freely used by anyone without infringing. For example, older famous works like the Mona Lisa or Shakespeare’s plays are in the public domain.
Find Works with a Creative Commons License: Some creators will put their work under a creative commons license, which gives permission for anyone to use the work freely as long as certain conditions are met, which the creator gets to choose (e.g, attribution is given to the creator, the use is noncommercial, etc..) If you are using material that is tagged “free,” or taken, for example, from a Creative Commons site, it is a good idea to develop a system for documenting where you pulled such material from should it later be challenged. (A screenshot showing the permission listed at the time you took the image would be ideal.)
Create Your Own Work: The surest way to avoid copyright problems is to take the photo, create the image or write the copy yourself. If you create the copyrighted work you own it (unless you you are being paid/treated as a traditional employee, in which case your employer probably owns the work, something very rare in the student media world.)

Common infringing uses of copyright

Copying and Pasting: It’s incredibly easy to copy and paste things from one website to another, but unless you have permission, a license, or the work is in the public domain, you’re probably infringing a copyrighted work. This goes for images, videos, written work, and more. There is a common misconception that if an image does not have a watermark or a copyright notice, it is not copyrighted. Copyrights are automatic, so even if you give credit to the original creator, you can still be liable for infringement.
Downloading files from Google: Just because you have access to image files on Google does not mean that they are free and clear to use. Google does not infringe copyright by pulling up the picture in a search, but that immunity does not extend to internet users who take that image for infringing uses. Luckily, Google images comes with a tool that allows users to find images that will not infringe copyright. Simply run a search, click “Images” > “Usage Rights” > and select “labeled for reuse” to find millions of images that will not infringe copyright. Again, if you find your image this way take a moment to document its origin and how you acquired it.
Streaming and Downloading Illegal Movies or Music: Websites that host illegal copies of movies are committing copyright infringement, and you could be liable for downloading or streaming those illegal copies. Always use reputable sites like Netflix, Hulu, or Spotify that have licenses to use copyrighted work.
“If I Only Use Part of a Song or Picture, it’s Not Infringement!”: One myth that has pervasively circled around the internet is that if you only use part of the work (like 30 seconds of a song), it isn’t infringement. Unfortunately, that is a myth. Although copyright law does have an exception for de minimis use, using any part of a copyrighted work can be infringement, even if it is small.

Fair use

Fair Use is a statutory defense to copyright infringement. The doctrine allows someone to use another person’s copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. However, courts must go through a balancing test of four factors to determine if something is truly fair use, considering:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work (how much protection it has)
The amount and substantiality of the portion of the original work used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for copyrighted work

Fair use is a complicated test that many courts struggle with. Generally, something like pulling a copyrighted image off Google to put into a powerpoint for a school project shown only in class is probably fair use, but using a celebrity’s picture on social media to promote the sale of a yearbook is not. More information can be found in the SPLC’s Fair Use Guide.

Conclusion

Many copyright owners are relying on bots to scour the internet for infringing uses of their work. These bots indiscriminately generate infringement notices and send them to any website that hosts the copyrighted material, often demanding hundreds or thousands of dollars for each infringement. To many, these demands are intimidating and seem to come out of nowhere. While many of the demands are legitimate, some unscrupulous attorneys and scam artists have been taking advantage of this system to make quick money from settlements. Respecting copyright law, doing your research, auditing and cleaning up your existing online presence and seeking help when you have legal questions will help you protect yourself from these auto-generated requests.

Last updated September 2018