Need help - accused of violating Copyright law

[Bo Mill]

Hi everyone,

I have entered a dispute with one fellow web master.

He has designed & made 15 "review sites" and is selling them (15 different niches). He chose top 3 products (in terms of ClickBank gravity) and put them on the website.

His main website (where he sells all that stuff) is powered by Joomla, with VirtueMart and a JoomlArt.com template.

My website is also powered by Joomla, with VirtueMart and a JoomlArt.com template. I have designed & made 13 "review sites" and I am selling them (13 different niches). I also chose top 3 products in terms of CB gravity and put them on the website.

He accuses me of Copyright violation and has filed a DMCA complaint.

Really, what copyright does he hold? If I stole his mini site designs, that would be different. But I designed them on my own!

Thanks!
-Bo

[Michael Motley]

a: he doesnt have a copyright.
b: see a.

[TheRichJerksNet]

He is trying to scare you .. If you designed your own stuff and took nothing of his then ignore it ... If your host contacts you explain to them that the party is required by law to show the proof of copyright violation and show the patent numbers that he owns such copyright. Remind the host that the matter must be settled in court and they can not rip down your site without such court order.

edit: the link in your sig does not work, if you took the sites down and did nothing wrong then put them backup ...

James

Disclaimer: I am not a laywer and this is NOT legal advice, this is fact ....

[Droopy Dawg]

Originally Posted by Michael Motley

a: he doesnt have a copyright.
b: see a.

This ^^

[Bo Mill]

Thank you guys! That made me feel a lot better!

The only problem remains is that, when my designer made the websites, he copied the description of the products (about 50-100 words each) from him. I said that I will remove them, which I will do tomorrow.

Thanks again

EDIT: James, thanks a lot for the info. I have not taken the website down - DreamHost did! They didn't even send me the notice - nothing! They just turned it off!

[Marty S]

Originally Posted by Bo Mill

Thank you guys! That made me feel a lot better!

The only problem remains is that, when my designer made the websites, he copied the description of the products (about 50-100 words each) from him. I said that I will remove them, which I will do tomorrow.

Thanks again

I would remove them immediately, and you should have known better.

[GarrieWilson]

Originally Posted by Bo Mill

Thank you guys! That made me feel a lot better!

The only problem remains is that, when my designer made the websites, he copied the description of the products (about 50-100 words each) from him. I said that I will remove them, which I will do tomorrow.

Thanks again

Why didnt you include that information to start with?

Makes me wonder what else you are leaving out...

Advise: If you are selling these sites, you better contact all the buyers. You are liable if they get into trouble...

[winebuddy]

Good ole Bo.... left out the most important part.

"copied the description of the products"

[TheRichJerksNet]

Ok let's get something straight here....

1. The designer took the product description but the product is not owned by this person but clickbank merchant, is that correct ???

2. DreamHost is in violations of your rights, personally I would send them notice of such violation and even go and pay a lawyer $35 to type of a letter of the violation and send it to DreamHost.. I would do this just for the point of it - A Host can not turn off your site that you paid for just because someone screams copyright, this is illegal. We do have a justice system for a reason, it may suck but that is not the point.

3. Move to hostgator - Web Hosting, Reseller Hosting, and Dedicated Website Hosting w/ cPanel - HostGator

4. If the description of the product come from the clickbank product then you did nothing wrong and that "text" is not copywritten. That text also is not owned by the other party either...

James

[Bo Mill]

The problem is that I had no idea that the designer has taken the descriptions off the complaint's website. I have taken the website down now that I know that it has been copied.

1. That's correct.

2. I will let them know that.

3. Will think about it.

4. But it didn't. It's from his website. I have taken my website offline now, until I change it.

Also, is my designer liable for the damage he caused? What should I do?

Thank you everyone!

[winebuddy]

apparently your "website designer" is not a designer - he's a copier - and if there is any liability, it should be his/hers.

[TheRichJerksNet]

Originally Posted by Bo Mill

The problem is that I had no idea that the designer has taken the descriptions off the complaint's website. I have taken the website down now that I know that it has been copied.

1. That's correct.

2. I will let them know that.

3. Will think about it.

4. But it didn't. It's from his website. I have taken my website offline now, until I change it.

Also, is my designer liable for the damage he caused? What should I do?

Thank you everyone!

Bo,
You just stated the description of the product comes from the clickbank product.. Now if that is correct then that description does not belong to the other party as they original text came from the product owner which obviously is allowing you to advrtise his/her product as an affiliate.

Thus you nor the designer did anything wrong, ok let me see me this person "prove" you took his little stupid text description. Because if he can not prove ownership of said text (which is seriously stupid) then he just violated your rights and filed a false complaint that caused damages to your business....

With that said the host DreamHost is liable for removing a site under a fasle complain and not following proper legal procedures. I would contact DreamHost backbone provider - Dreamhost.com - DreamHost - And I would send them legal papers also.

Bottom line is what was done to you is illegal, you did not wrong at all... You can file charges and claim liable damages from the host and the person that files the false complaint.

Personally I would do it just to prove a point and to show that law breaking host that you do infact have rights under law.

James

Disclaimer: please speak with a lawyer as I am not one and nothing above can be constituted as legal advice.

[GarrieWilson]

Originally Posted by TheRichJerksNet

2. DreamHost is in violations of your rights, personally I would send them notice of such violation and even go and pay a lawyer $35 to type of a letter of the violation and send it to DreamHost.. I would do this just for the point of it - A Host can not turn off your site that you paid for just because someone screams copyright, this is illegal. We do have a justice system for a reason, it may suck but that is not the point.

Actually, a host can and must if they don't want to be held liable for damages.

However, the complaining party must follow certain guidelines. Such as filing a DMCA take down notice to the hosts registered agent w/ the copyright office. If the host doesn't have one, they can be held liable.

The last DMCA notice I sent, the host pulled the content but told me if I didn't file suit within 2 weeks (IRC), they might allow the content back.

4. If the description of the product come from the clickbank product then you did nothing wrong and that "text" is not copywritten. That text also is not owned by the other party either...

That is incorrect. That text *is* copyrighted by the product owner. Just because it's in the marketplace, doesn't mean you have permission to use it.

Garrie

PS I'm not an attorney and you should ask one before relying on anything said in a forum. This thread is a perfect example of misinformation that can cost you.

[GarrieWilson]

Originally Posted by TheRichJerksNet

He is trying to scare you .. If you designed your own stuff and took nothing of his then ignore it ... If your host contacts you explain to them that the party is required by law to show the proof of copyright violation and show the patent numbers that he owns such copyright.

Copyrights do not have patent numbers. Copyrights do not even have to be registered for someone to sue and win. One benefit to registering is so you can claim the max w/out having to prove damages.

Remind the host that the matter must be settled in court and they can not rip down your site without such court order.

That's not true. Read up on the DMCA.

Disclaimer: I am not a laywer and this is NOT legal advice, this is fact ....

It's not a fact. It's far from it.

[Nonny]

Originally Posted by GarrieWilson

That's not true. Read up on the DMCA.

IANAL either, but my understanding is that if someone has filed a DMCA notice about your site, the next step on your part is to file a counter-notice once all infringing content has been removed or indicating you believe the original DMCA notification was in error.

What are the counter-notice and put-back procedure...? -- Chilling Effects Clearinghouse

In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

There's a counter-notice generator here:
DMCA Counter-Notification -- Chilling Effects Clearinghouse

[LB]

There's a lot of bad info in this thread. The final answer is always to consult a lawyer.

In the meantime, the DMCA and your host TOS are a good place to start.

Most hosts have in their TOS that they can terminate you for any reason at any time...even if it's because your feet smell.

[R Hagel]

Wow, there is some really bad advice in this thread. However, there is one piece of advice that you SHOULD follow -- talk to an attorney. As Garrie said, this misinformation you've been presented in this thread can really cost you.

Cheers,
Becky

P.S. Don't assume you're off the hook for anything until you've sought legal advice. Be sure to tell your attorney the ENTIRE story -- every detail -- right away. Don't leave anything out as you apparently did here. That sort of thing can also cost you.

[TheRichJerksNet]

Originally Posted by GarrieWilson

Copyrights do not have patent numbers. Copyrights do not even have to be registered for someone to sue and win. One benefit to registering is so you can claim the max w/out having to prove damages.

That's not true. Read up on the DMCA.

It's not a fact. It's far from it.

Garrie I am not a lawyer but I have been through this myself as I am a website developer.. FACT - A host "MUST" have a court order to remove the contents of your site or they do become liable for any damages.. Please ask any lawyer this, they will tell you the same.

IF the description of said product come from the actual product itself then the host and the party that filled the false complaint can be held for damages.

Host can not just rip you down because they feel like it, you paid for a service and they are obligated to provide that service unless you have broken the law or their tos. They must be able to prove you have broken the law or their tos, otherwise they are open to be sued.

I will not argue this fact with you .. I know what I have seen and I know what I have seen others go through. I fully understand how people actually get illegal content removed from such places as eBay. You want to know why eBay requires you to register your product with them ?? Because they do not want to be sued.

I suggest again the OP seek the advice of a lawyer and move host. You can get a free consultation most of the time by calling a lawyer in your area.

4. If the description of the product come from the clickbank product then you did nothing wrong and that "text" is not copywritten. That text also is not owned by the other party either...

Let me restate that since you misread what I typed... IF the product description cam from said product then the party that filled the false complaint has no right to claim copywrite of said text. The product is owned by the product creator not the affiliate.

James

[GarrieWilson]

Originally Posted by TheRichJerksNet

Garrie I am not a lawyer but I have been through this myself as I am a website developer.. FACT - A host "MUST" have a court order to remove the contents of your site or they do become liable for any damages.. Please ask any lawyer this, they will tell you the same.

IF the description of said product come from the actual product itself then the host and the party that filled the false complaint can be held for damages.

Host can not just rip you down because they feel like it, you paid for a service and they are obligated to provide that service unless you have broken the law or their tos. They must be able to prove you have broken the law or their tos, otherwise they are open to be sued.

I will not argue this fact with you .. I know what I have seen and I know what I have seen others go through. I fully understand how people actually get illegal content removed from such places as eBay. You want to know why eBay requires you to register your product with them ?? Because they do not want to be sued.

I suggest again the OP seek the advice of a lawyer and move host. You can get a free consultation most of the time by calling a lawyer in your area.



Let me restate that since you misread what I typed... IF the product description cam from said product then the party that filled the false complaint has no right to claim copywrite of said text. The product is owned by the product creator not the affiliate.

James

James,

Your "advice" being based on what you have "seen" is not only incorrect but could get someone in a lot of trouble.

FACT: A host can remove content for any reason if it's in the TOS.

FACT: Under the DMCA a "internet service provider" can be held liable for copyright violations unless they have a registered agent that copyright owners can submit violtions to. Having a registered agent doesn't cover the "isp" if they know of they violation and allow it.

FACT: Under the DMCA, a "internet service provider" must take down sites when notice is given using the proper procedure. If they don't they can be held liable.

FACT: Under the DMCA, a "internet service provider" does NOT have to give the client notice before they remove the content.

FACT: If the compaining party doesnt file suit within 14 days in a district court, the "isp" must restore the deleated items.

Just because you have seen things done differently, doesn't make it correct or legal.

As far as eBay, they are going a step beyond what is required. A copyright owner does NOT have to register with Vero or eBay to have items removed.

I highly suggest you research the DMCA. Especially if you plan on giving advice.

Garrie

[TheRichJerksNet]

Your missing the entire fact that the other party filled a false complaint. He does not own the product, he is only an affiliate. The OP stated the text is from the product and as such the other party can not file a claim for copyright on something that does not belong to him.

As I said from the first post seek a lawyer ...

Personally if it was me my sites would have been moved and put back up within the hour because the fact I knew I did nothing wrong and broke no laws.

With that said I will opt out of this thread because it is very easy for someone to misread what someone else says...

James

[jcoolbaugh]

James,

Before you jump down Garrie's throat again, you may want to go back and read what the OP actually said...

Originally Posted by Bo Mill

...when my designer made the websites, he copied the description of the products (about 50-100 words each) from him.

Nowhere does he state that the text came from Clickbank. He clearly states that it was taken directly from the complainant's site. As a copywriter, I'd like to think I know a little about copyright laws - and stealing copy from someone else's site is definitely a violation of copyright law.

[FSherrill]

Hello,

I would not be too quick to go to host gator or any other hosting company without reading their terms of service. Most hosting companies will immediately suspend your account if a copyright or trademark violation is reported. And to make matters worse if you have paid for the hosting for the entire year they will not reimburse you for what you have overpaid.

Here is a snippet of host gator's terms of service:

“Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of anothers copyright will be expeditiously removed, or access to the material disabled.”

Many service providers have a reputation for being ruthless about removing or suspending hosting accounts without giving the other party the opportunity to state their case.

Go Daddy being the WORST OFFENDER!

I would make sure that on each of your websites you have a DMCA disclaimer and that your new hosting company does not have a "shoot first and ask questions later" terms of service policy.

It seems these "terms of services" are written to benefit them for taking such actions.

Just my two cents

Originally Posted by TheRichJerksNet

Ok let's get something straight here....

1. The designer took the product description but the product is not owned by this person but clickbank merchant, is that correct ???

2. DreamHost is in violations of your rights, personally I would send them notice of such violation and even go and pay a lawyer $35 to type of a letter of the violation and send it to DreamHost.. I would do this just for the point of it - A Host can not turn off your site that you paid for just because someone screams copyright, this is illegal. We do have a justice system for a reason, it may suck but that is not the point.

3. Move to hostgator - Web Hosting, Reseller Hosting, and Dedicated Website Hosting w/ cPanel - HostGator

4. If the description of the product come from the clickbank product then you did nothing wrong and that "text" is not copywritten. That text also is not owned by the other party either...

James

[sbucciarel]

He has no copyright on the templates and no copyright on the idea. The only copyright he can hold is the actual wording of his reviews. As long as you did not copy his reviews or his graphics, if indeed, they are "his" graphics, you've nothing to worry about.

Edit: Ok just saw this added:
The only problem remains is that, when my designer made the websites, he copied the description of the products (about 50-100 words each) from him. I said that I will remove them, which I will do tomorrow.

Clearly copyright infringement unless the copy came from somewhere else originally, and then it might well be copyright infringement but with a different complaining party ... or if it came directly from the Clickbank product description. At any rate, it would be far better to just rewrite it all in your own words.

[HeySal]

What the heck is the debate in this thread? Bo has since opening the thread found out that his designer plagiarized product descriptions from a private party - he did not take them from Clickbank descriptions. IT is not a matter of him using the same affiliate information which is given to any affiliate for use - it was copied from another affiliates freshly written copy. It at that point, wasn't up for grabs.

He is doing the right thing by taking them down. He is responsible for plagiarism - and even if it was the designer that lifted the text, all he can do is sue the designer for reimbursement of expenses and damages if he gets sued for plagiarism. He is ultimately responsible for what is on his site.

Bo - sorry to hear you got had by your designer - but learn a lesson from it - do your own copy or check that what is given to you truly is fresh - or at least public domain before you post it. You have your head on straight and are doing the right thing. IF the other guy actually has original copy, mostly all he has to do to win is to show he had the info up before you did unless you know each other or worked in a way he could gain access to pre-published info from you.

You are not only doing the legal thing - you have some integrity. Your customers will be able to trust you. Good job.

[Bo Mill]

Thank you everyone for your helpful replies.

As soon as I found out that the descriptions were the same, I have taken the website down. It took me several hours to do the necessary modifications (rewrite the descriptions). The website is now back up. Everything will be fine.

Now I just have to work on getting more sales

[seobro]

I have seen that many 'web designers' from low wage countries use "CUT & PASTE" as their primary design method. These are countries where people dream of one day working inside a 7-11 for the minimum wage. You get what you pay for. Court can be very expensive.

[TheFlash]

how did it go? keep us updated

[dljmktg1]

I know I'm coming across this thread a bit late, but just to add to it:

Some friends of mine are at the house today watching the NBA finals. One of them is a copyright attorney. His unofficial advice (since he does not know you or all the facts) is this:

1. If anything more comes of this, consult your own attorney.

2. Under no circumstance should anyone ever admit guilt on a mostly public forum. Even if it was on the part of someone you hired. If anything does come of this, you may have shot yourself in the foot.

3. You did the right thing by changing the offending wording, but it does not relieve you of liability if the matter is pursued.

4. Your designer should refund all monies paid to him, plus any expenses you may be out for having to change things. From the sound of things, he may have copied more than the descriptions... same CMS, same theme, etc. It could be argued he was trying to make your site look like the other one.

5. Realize that all published works on the internet are automatically copyright of someone just by virtue of being published and you do not have the right to use it unless permission is granted.

6. Probably changing things around is all that is needed. The first guy likely does not want
the hassle or expense involved in a suit.

7. After all is said and done, see number 1.

[gyar29]

Originally Posted by Bo Mill

The only problem remains is that, when my designer made the websites, he copied the description of the products (about 50-100 words each) from him. I said that I will remove them, which I will do tomorrow.

You've another problem. You let your website designer handle your content? Probably not the best idea I've ever heard.

Did the designer know that the content they added to your website would be the content that would be there when you went public with your site? If not, they may have just used it as a place holder making it easy to add your own.

But then...

Most designers do not copy content from anywhere. We throw in dummy text, such as Lorem Ipsum, to use as a place holder. Unless the site we are designing was pulled down from another website content and all. Of course, then your designer didn't design a damned thing. He, or whomever grabbed the site, stole it. In which case, you are responsible for any copyright infringement, and I'm glad to see you intend to fix that little problem.

If you are telling us the whole truth here, you've got a damned poor designer. I know one or two or ten designers. None of whom also claim to be copywriters.

So I would suggest in the future you hire designers that design sites, copywriters that write copy, and leave the stealing to more unethical people than yourself.

Damn. Designers get blamed for everything!!! Poor me.

Gene

[kayvee]

Hey Guys...

We should give Bo the benefit of the doubt. Stop hinting that he isn't telling the truth or leaving info out. Not cool.

And some of you need to relax....

I agree that you should deal with the DreamHost with the help of a lawyer if need be.

But....Bo...before you do anything else...did you try contacting the guy who is suing you?

Just do it the old fashioned way man....Contact him and explain to him what really happened...after all it wasn't your fault. Most people are very understanding. And do apologize even though it wasn't your fault. Accept responsibility say something like this...

"Dear so and so,

I want to take this opportunity to apologize for......blah blah blah.

Please allow me to explain what really happened....

Please note that I have discontinued my relationship with my website designer.

Blah blahblah."

If he accepts this, it will save you and him alot of legal fees...not to mention all the time, effort and headaches that go into these kind of things.

I hope it all goes well.

[greff]

I doubt the fellow has a copyright on the text, but still, you should take it down immediately if you used his descriptions.

[Martin Luxton]

Originally Posted by gyar29

Most designers do not copy content from anywhere. We throw in dummy text, such as Lorem Ipsum, to use as a place holder.

IGene

I have often wondered who owns the copyright on the Lorem Ipsum text

Bo,

lawyer time.

Martin