Web Site - Copyright Infringement?

[Tunie]

State: MICHIGAN

I must apologize first as this will be quite lengthy. I want to give as clear a picture as I can of the problem I have. If more info is needed, I will provide what I can.

I am a web site developer and have been for over 10 years. As a young upstart business, I did sites with no contract, no protection. I got taken advantage of and got a little (notice I said, a little ) smarter and started having clients sign contracts stating what I would do, wouldn't do, what I expected from them, what they could expect from me. This contract was in use for about the first 2 years I was doing web site development.

I then had a professional contract drafted by an attorney which is much more comprehensive and protective for both myself AND my clients and have continued to use substantially the same contract for 8 years with no problems. It is not a one-sided, in favor of me, contract but a just and equitable contract. The new contract was written to include clauses regarding authorship, ownership and copyright issues. If a client wishes to own the site when it is done, the contract is updated to reflect that and I am compensated for giving up my rights. If they don't want a copyright, the phrasing protecting my copyright interest is left in with their complete knowledge and acknowledgment.

I pride myself on being an honest business owner. I go out of my way to support my clients and offer them trustworthy, reliable services and have for over 10 years.

Now the problem. I have had issues come up before where a client will "give" my work product (the site I developed) to another designer. I have had to send notices to clients and offered to negotiate with them to pay me a nominal sum and I will sign over my rights to the client or anyone of their choosing. I have never NOT been more than willing to work with a client who wants to do this and in some cases, have willingly given over the site to another designer without receiving compensation. I view each case separately and base my decision on a number of factors.

That said, I now have what I consider a clear case of another designer stealing my site. He obtained access from the ISP who hosts the site because, as the ISP advised me, "The client owns the space on the server and has every right to access." This is what the ISP says their attorney told the ISP.

What the ISP does not have the right to do is lock me out of access to my own work product (the original site files) but that is what has happened.

The new guy then proceed to remove my "This site designed and developed by (my company name) All Rights Reserved" graphical notice on each and every page of the site and it has also been removed from the author and comment tags in the code on each and every page. It has been replaced with a new author code and notice on the site that the "Creative design developed (by the new guy)" The new designer has also inserted his name and company in place of mine in the author and comment tags in the code.

The alterations to the site include changing the font use throughout from Trebuchet to Times New Roman. He has forced the pages to be smaller which looks like crap. Whatever.

The PROBLEM is he is still using the graphics I created from scratch, the general layout of the pages I designed, the background image on every page I designed, title header graphics, in short, everything is the same as when I last updated it in May of of this year basically - but now he is claiming MY work as his own.

I have sent a certified letter to the CLIENT on 10/21 advising her of these infringements, requesting that she contact me within 10 days (today is the 10th day) and requesting that the site be put back to the condition it was in prior to new guy messing with it until the issues of copyright infringment are resolved.

She has not responded to my letter, she received it on 10/24.

BIGGER PROBLEM: Until implementing the new contract mentioned above, I did not address copyright issues in the old contract at the time this client was obtained and the site was developed. I have been the sole person to maintain the site for over 6 years. It's not a big money maker but that's not the issue - this guy stole my work, is claiming it as his own and this was all started by my own client (obviously, no longer a client!)

I now file a formal copyright application on each site for those clients who do not comepnsate me for the right to own the site when it is done but I wasn't doing that when this particular site was developed. I hate to admit it, but I didn't know any better back then. But I believe that the copyright rests with me as the original author and publisher of the work without having to file a formal copyright. I could be wrong.

I have read that I can send a letter to the ISP and request that they take down the site per Section 512 of the DMCA. I hestitate to do this even now because the ISP is a company I have worked with since day one. We have (had?) a great business relationship and I have referred many, many clients to them for hosting. I know this will drag them into this mess but feel that may be my only option to force the client and this new guy to pay attention.

I guess I'm looking for some opinions on how to proceed from here. Send the take down letter to the ISP and copy the client? Can I file a copyright application after the fact, so to speak, on the original work product? The site, as it stands today, is 99.9% still my original site design, but now another person is claiming it is their work product.....

I don't know what to do really. This is the first really blatant infringement I have had to deal with and I'm a bit lost as to how to proceed now since it's obvious the client isn't going to respond to my 10/24 letter. I know that I cannot expect much in the way of damages as I don't have a formallly filed copyright on the work and I may not even be able to sue without one.... but I'm really kinda lost. Additionally, the contract with this client is to be "construed under Indiana law" as I was living and operating my business in Indiana at the time. I am now in Michigan and the client remains in Indiana, if that is of any help.

 

[HomeGuru]

State: MICHIGAN

I must apologize first as this will be quite lengthy. I want to give as clear a picture as I can of the problem I have. If more info is needed, I will provide what I can.

I am a web site developer and have been for over 10 years. As a young upstart business, I did sites with no contract, no protection. I got taken advantage of and got a little (notice I said, a little ) smarter and started having clients sign contracts stating what I would do, wouldn't do, what I expected from them, what they could expect from me. This contract was in use for about the first 2 years I was doing web site development.

I then had a professional contract drafted by an attorney which is much more comprehensive and protective for both myself AND my clients and have continued to use substantially the same contract for 8 years with no problems. It is not a one-sided, in favor of me, contract but a just and equitable contract. The new contract was written to include clauses regarding authorship, ownership and copyright issues. If a client wishes to own the site when it is done, the contract is updated to reflect that and I am compensated for giving up my rights. If they don't want a copyright, the phrasing protecting my copyright interest is left in with their complete knowledge and acknowledgment.

I pride myself on being an honest business owner. I go out of my way to support my clients and offer them trustworthy, reliable services and have for over 10 years.

Now the problem. I have had issues come up before where a client will "give" my work product (the site I developed) to another designer. I have had to send notices to clients and offered to negotiate with them to pay me a nominal sum and I will sign over my rights to the client or anyone of their choosing. I have never NOT been more than willing to work with a client who wants to do this and in some cases, have willingly given over the site to another designer without receiving compensation. I view each case separately and base my decision on a number of factors.

That said, I now have what I consider a clear case of another designer stealing my site. He obtained access from the ISP who hosts the site because, as the ISP advised me, "The client owns the space on the server and has every right to access." This is what the ISP says their attorney told the ISP.

What the ISP does not have the right to do is lock me out of access to my own work product (the original site files) but that is what has happened.

The new guy then proceed to remove my "This site designed and developed by (my company name) All Rights Reserved" graphical notice on each and every page of the site and it has also been removed from the author and comment tags in the code on each and every page. It has been replaced with a new author code and notice on the site that the "Creative design developed (by the new guy)" The new designer has also inserted his name and company in place of mine in the author and comment tags in the code.

The alterations to the site include changing the font use throughout from Trebuchet to Times New Roman. He has forced the pages to be smaller which looks like crap. Whatever.

The PROBLEM is he is still using the graphics I created from scratch, the general layout of the pages I designed, the background image on every page I designed, title header graphics, in short, everything is the same as when I last updated it in May of of this year basically - but now he is claiming MY work as his own.

I have sent a certified letter to the CLIENT on 10/21 advising her of these infringements, requesting that she contact me within 10 days (today is the 10th day) and requesting that the site be put back to the condition it was in prior to new guy messing with it until the issues of copyright infringment are resolved.

She has not responded to my letter, she received it on 10/24.

BIGGER PROBLEM: Until implementing the new contract mentioned above, I did not address copyright issues in the old contract at the time this client was obtained and the site was developed. I have been the sole person to maintain the site for over 6 years. It's not a big money maker but that's not the issue - this guy stole my work, is claiming it as his own and this was all started by my own client (obviously, no longer a client!)

I now file a formal copyright application on each site for those clients who do not comepnsate me for the right to own the site when it is done but I wasn't doing that when this particular site was developed. I hate to admit it, but I didn't know any better back then. But I believe that the copyright rests with me as the original author and publisher of the work without having to file a formal copyright. I could be wrong.

I have read that I can send a letter to the ISP and request that they take down the site per Section 512 of the DMCA. I hestitate to do this even now because the ISP is a company I have worked with since day one. We have (had?) a great business relationship and I have referred many, many clients to them for hosting. I know this will drag them into this mess but feel that may be my only option to force the client and this new guy to pay attention.

I guess I'm looking for some opinions on how to proceed from here. Send the take down letter to the ISP and copy the client? Can I file a copyright application after the fact, so to speak, on the original work product? The site, as it stands today, is 99.9% still my original site design, but now another person is claiming it is their work product.....

I don't know what to do really. This is the first really blatant infringement I have had to deal with and I'm a bit lost as to how to proceed now since it's obvious the client isn't going to respond to my 10/24 letter. I know that I cannot expect much in the way of damages as I don't have a formallly filed copyright on the work and I may not even be able to sue without one.... but I'm really kinda lost. Additionally, the contract with this client is to be "construed under Indiana law" as I was living and operating my business in Indiana at the time. I am now in Michigan and the client remains in Indiana, if that is of any help.

**A: if you are a 10 year veteran in web site development, why don't you have a business attorney yet?

 

[Tunie]

Actually, I do have a business attorney, but I was trying to do some legwork and perhaps get some helpful pointers before retaining him in this matter. He is the attorney who drew up my second contract. Like everyone, I would like to be able to present my issue to him having done some legwork first, not only to save money, which we all like to do, but also not go in blind. I may need to hire an intellectual property attorney or someone more versed in Internet law. My present attorney basically counsels small business owners in various matters but is not that well-versed in Internet law which seems to be a pretty dynamic area of the law at this point in time.

Guess I will at least call him and get some direction... figured that would be the answer but I thought it might help to get some direction from others who may have found themselves in a similar situation before contacting him.

 

[Tunie]

Addendum....

I have been looking further on this site and found a post regarding potential copyright infringement of a web site..... In the reply, a poster claimed that if you do NOT have a formal copyright filed with the US Copyright Office, that an award of damages can be very limited and can even amount to a big fat zero. The poster also said that if you file for a copyright within 30 days of the known infringement, than chances are better of a statutory recovery.

Anyone know if this is actually true? Being able to file for a copyright, even tho' after the fact of the infringment would certainly bolster my position but I am unsure if it can actually be true that filing within 30 days after the known infringement can be be done? I have checked on the U. S. Copyright Office's web site but see no references to filing "after the fact".

?? Thank you for any assistance.

 

[divgradcurl]

I have been looking further on this site and found a post regarding potential copyright infringement of a web site..... In the reply, a poster claimed that if you do NOT have a formal copyright filed with the US Copyright Office, that an award of damages can be very limited and can even amount to a big fat zero. The poster also said that if you file for a copyright within 30 days of the known infringement, than chances are better of a statutory recovery.

Anyone know if this is actually true? Being able to file for a copyright, even tho' after the fact of the infringment would certainly bolster my position but I am unsure if it can actually be true that filing within 30 days after the known infringement can be be done? I have checked on the U. S. Copyright Office's web site but see no references to filing "after the fact".

?? Thank you for any assistance.

Did I write the earlier post that you are referring to? If so, I was wrong -- the only time a registration AFTER infringement will allow you to sue for statutory damages is if the registration occured within 3 months of the first publication of the work -- so if you publish a work, then register within 3 months, if infringement occurs within those first 3 months, you can still sue for statutory damages. If I said differently in an earlier post, either a) I was wrong, or b) there were some differing facts which may make such a statement true.

 

[divgradcurl]

Actually, I do have a business attorney, but I was trying to do some legwork and perhaps get some helpful pointers before retaining him in this matter. He is the attorney who drew up my second contract. Like everyone, I would like to be able to present my issue to him having done some legwork first, not only to save money, which we all like to do, but also not go in blind. I may need to hire an intellectual property attorney or someone more versed in Internet law. My present attorney basically counsels small business owners in various matters but is not that well-versed in Internet law which seems to be a pretty dynamic area of the law at this point in time.

Guess I will at least call him and get some direction... figured that would be the answer but I thought it might help to get some direction from others who may have found themselves in a similar situation before contacting him.

It sounds like you have a good grasp of the copyright issues involved -- unless you specifically gave away the copyrights to your websites you developed, you still own the copyrights, and the business that hired you has, at best, an implied license to continue using the work that they paid for. But, unless a contract specifies otherwise, that's all the business has, a license, and they do not have the right to commission derivative works based on your website.

However, as you have found, without a registered copyright, it can be difficult to prove up enough damages to make a case worthwhile. However, there are other remedies -- there is the "DMCA" complaint, for example -- that you could sue for. You could sue for injunctive relief, for example. Perhaps even the threat of a lawsuit would be enough to get them to stop using your code, or at least force them to negotiate. Work with your lawyer to determine the appropriate actions.

 

[Tunie]

Thank you for your response. I have tried to make myself as knowledgeable as possible about the issues at hand.

So far, I have sent two letters to the client who contracted with me to develop the site in the beginning and for whom I have done updates on the site for the last 5 years. Both letters were sent certified mail, she has received both.

Her first response to me was "don't take it so personal" along with the comment that it was "just business" that she hired someone else to alter my work. She also implied that because a sentence structure on the site was "gramatically incorrect" that she had the right to hire someone else to alter the site. Problem with that is the "grammatically incorrect" phrase came directly from a printed piece she provided to me. She also accused me of not reminding her to add things to the site and said I wasn't "progressive enough." Problem with that statement is that I have a file that is 3" thick of e-mails and letters to her over the course of five years that were ALL about my suggestions to add new features to the site - e-commerce, onine scheduling, all kinds of suggestions and ideas I've sent to her including actual estimates she requested I prepare. She has NEVER, in 5 years, followed thru on any of it. Short of hitting her over the head with a 2x4, I've done everything possible to prod her along. I can't force her to do it. Her not progessive enough statement is truly a baldfaced lie.

Either way, none of the points she was trying to make, and badly at that, have anything to do with the infringement that has occured.

I replied to her response in a 8 page letter that was very detailed, point by point, about her misrepresentations and further reiterated that none of that really has anything to do with what has happened here. I gave her another 10 days to respond and said if she didn't that I would contact the ISP and serve them with proper notice to take down the site per the DMCA. I am waiting to hear back from her. I am sure I will. She has an overinflated sense of entitlement and I like her digging her own hole.

I also sent a letter to the guy that altered the site illegally. So he is on notice as well. He received the certified mail today.

The site is still up. I have backed it up each day since I first noticed what was going on and I have incremental backups of my own work going back to the first day I started developing the site. Proving the infringement is not going to be a problem.

I have also filed an application with the U. S. Copyright Office - after the fact, I know but I feel it's worth the $30.00. I supplied the original work files as my deposit with them. I know I am not eligible for statutory damages and attorneys fees because of it being after the fact. Yes, I'm kicking myself now!

I haven't had to utilize my attorney formally yet. I am a very small business owner and I'm lucky that he has given me some guidance so far to save me costs but I am sure if it goes much further I will need him to step in.

I think the hardest part, of course, will be proving damages. I need to be able to place a value on the lost work, substantiate a charge that I should be compensated for the money paid to this other guy that I could have been paid for had I done the updates, the value of losing the marketing of this site as an example of my work product etc.... That will, no doubt be the hardest part.

I've had clients who wanted to go with someone else for various reasons and, until this instance, never really had a problem with it. Some have bought out my rights via a legal transfer, some I have willingly given up and others I gave up who came back to me because they were unsatisfied with the new developer. In other words, I have been more than willing to work with people and not be an ass.

This instance is different and I don't plan on giving up. To have her think, that what she has done is okay is wrong and I want to make her well aware of it and to have the new guy think he can take my work and put his name on it? That really burns me. He should know better. He has a copyright on his OWN web site so I am sure he is well aware of the issues at hand and I find it particularly egregious that he has acted in this manner.

No questions here, just an update... Thanks for reading, if you got this far!

 

[Tunie]

This situation is only going from bad to worse. Despite my written requests to both my client and the new person she has altering my work product to cease and desist immediately, the new guy continues to change portions of the site while still utilizing my graphics, code and various other items. What is it about CEASE and DESIST they don't understand??

Now comes the ultimate question... I've heard thru the grapevine today that the new guy was finally going to be putting up a completely new site, totally new.

So does all my time, letters, worry, anger and the fact that copyright infringement occured WITHOUT A DOUBT just disappear if a completely new site goes up? Do I still have a good legal reason to pursue this any further? I want to hear YES but, in reality, I know that I probably don't have much of a case if a totally new site goes up despite the fact that my site, complete with the illegal alterations, has been on display to the world for over a month now. Now I see how people get away with crap like this.

Steal my work, put your name on it and then use my work product as yours until you have time to replace it with something else. This is WRONG.

The topper is that the ISP that hosts the site is a business person I have worked with for over 10 years and he's stuck in the middle. If I send a take down letter, he has to comply and that's going to put him hot water which I don't want to do but I also don't want to let someone trample on my legal rights here.

 

[Tunie]

Server Access - who has the right? (updated)

Update if anyone cares. I have decided that I will not pursue this any further. I am not going to get anywhere with this and as a small business owner, I don't have oodles of money to spent on a lawyer. The site continues to be altered no matter what I've done so far and it simply is not worth the sleepness nights dealing with this has caused. I am sure, unfortunately, I am not the only small business owner/web developer who has given up because we don't have the financial resources to continue.

So, I pose another question.

This could have all been avoided if the hosting provider had not given access to this person. I have done research and can find no clear cut answer as to who actually had the legal right to access the files other than myself.

In this situation, the hosting provider was told by their attorney that they had to give access to the client and/or anyone the client designated to have access. The client was paying for the space and therefore, had the right to access it. But by giving them access this allowed someone else to alter MY work product.

What right does anyone have, other than the original copyright protected author of the files on the server, to take the files in the first place? If they are "my" files and my work product, how can it be legal to afford access to anyone else but me to the files? This action also locked me out of access to my own work product.