15 April 2004

In 1986, in an early edition of "The Complete Guide to Specialty Cars," I researched and wrote and published a major article about synthetic oil titled "Synthetic Oil: Rx For Long Engine Life."

That article proved to be quite popular not only with readers, but with the synoil producers as well. Mobil, in fact, purchased over 40,000 copies of that article, which they then included in their management training materials, and distributed to Mobil Oil dealers all over the U.S. and Canada and around the world.

But another synoil maker ignored my company's copyright of that article, and sailed merrily right into the waters of copyright infringement. They not only copied and distributed my article, they sold thousands of copies at a sizable profit to their dealers and managers. Although they answered my attorney's demand letter with a clear promise to cease and desist, they did no such thing. When I had gathered incontrovertible evidence that they were still busily Xeroxing and selling my article, we filed suit against them in federal court in Los Angeles later that year. To make a long story short, that corporation proceeded to spend a veritable fortune on topflight, federally-qualified intellectual-property attorneys. And it was all to no avail, since there is scant defense for copyright infringement. It's usually pretty much prima facie, or if you prefer, primarily-in-your-face. The amount they wound up paying to us, in spite of their dream team's best efforts, amounted to many times what they would've spent purchasing legitimate copies. All this occurred because that company didn't take copyright law seriously. You can bet that they do now.

Definition: the term "copyright" means precisely what the word implies: if you want to copy any piece of copyrighted intellectual or artistic property, you must first obtain the copyright holder(s) permission. And there is often more than one copyright holder for a given written piece or photographic item; for example, a photographer typically may claim a percentage of the copyright on a photographic image, while the person who scanned and edited and composited the digitized image may then legitimately claim the balance of copyright. In this case each person contributed materially to the deriviative work (the final image), and you must obtain permission from both claimants).

What's the downside for you if you choose to thumb your nose at the posted copyright notice? The penalty (per individual infraction) for willful violation of U.S. copyright law was recently increased from $100,000 USD to $150,000. This means, for example, if you copy a dozen graphic or photographic images from another website, you face maximum federally-mandated [and ratified/supported by The Berne Convention (1971) and the World Intellectual Property Organization Copyright Treaty (Geneva, 1996), and other copyright-recognition treaties throughout the world] penalties of up to $1,800,000. This ain't rocket science, guys: if you choose to play with fire and illegally copy another's intellectual or artistic or photographic property from the Internet, you face a legal confrontation you're gonna lose. Bigtime.

And when you do obtain the required permission, you must post a notice that proclaims that said item (e.g., text, graphic, photograph or computer code) is used with the permission of copyright holder John Doe.

Case in point: It's happened to us: we've been asked by a periodical publisher to remove a magazine photo-feature article about a particular replicar that a kit car manufacturer asked us to post on his kitcar.com subsite. At the time he had assured us that he had permission to copy and "republish" the article. It turned out that he could not display evidence of such permission, and we promptly removed said copyrighted materials.

Yet the Internet seems to have engendered a bumper crop of daredevils who think copyright law doesn't apply to them. The mindset seems to be "It's so easy to hold my mouse down on it and copy it and use it on my website, it must be okay." On a half dozen occasions in the past 7 or 8 years, I've been alerted to someone using materials (text, graphics, photographs and computer code) from CobraCountry and KitCar, to assemble or augment his own commercial website. And in each of those instances I've had to summon my lawyers to action. Never mind that 99.9% of what you see and read on our websites, including the graphics and the photographs, was created in entirety or in significant derivative part right here, by us. And never mind that over the past 20 years I've spent tens of thousands of dollars on photography equipment and travel expenses and computer hardware and software and professional scanning equipment, all to bring those images to you in our guides and on our websites. And never mind that our Copyright Notice, in full and abbreviated forms, is posted in over 500 locations on our sites, there are still folks who somehow convince themselves that said Copyright Notice must be intended for everyone else.

It'd be nice if one could merely ignore a single given instance of copyright violation. But the world of jurisprudence doesn't permit such maneuvering room; you see, if as a copyright holder you permit just one instance to go unremedied, then you run the risk of relinquishing your claim of ownership, in which case the item in question becomes public domain. I've no intention of ever permitting that to occur.

So, failing that expedient, it'd then be nice if one could merely dash off a non-threatening missive that says something like "Listen fella, you can't use that without my written permission, 'cause that text/those images are my property." But that strategy doesn't work. Not ever. Every copyright violator must learn the hard and expensive way. It's seems to be inherent in their DNA structure. That unfortunate fact of life forces me to direct our lawfirm to dash off a very unfriendly and genuinely menacing cease & desist demand to each of these scofflaws, and on more than one occasion when the C&D was ignored, to file a federal lawsuit. A copyright-infringement lawsuit invariably achieves the desired results, but it winds up costing the lawbreaker tens of thousands (or even hundreds of thousands or millions) of dollars in legal costs and civil damages and various infringement penalties.

One of these copyright infringements was brought to my attention on Friday, 6 April 2001, when I received an email from a replicar enthusiast who alerted me to a startup website about kit cars and run by a certain Mr. Gustafson that was rife with photographs and other graphic images that belong to me. When I went to the "Manufacturers Page" on the site that I was advised to check out, I counted at least 30 graphic and photographic images that Mr. Gustafson had purloined from CobraCountry and KitCar to use on his own commercial website. Each and every one of those images belongs either in entirety or in large part to me and my company, created through my photography and my scanning and image-editing equipment and expertise, each of which I had created exclusively for you to enjoy on KitCar and CobraCountry.

Mr. Gustafson didn't care to invest all of that time, travel, learning process, professional expertise and expense to create his site, so he just copied what he needed from what he deemed to be his "grab-bag of free stuff" on KitCar and CobraCountry. Each of the pages from which Mr. Gustafson copied those images was posted with our unabridged Copyright Notice. So there can be no question that his actions represented conscious and willful violation of copyright.

I sent Mr. Gustafson a very courteous email, advising him that he had tread onto a legal minefield; in that message I included the entire text of our full-length Copyright Notice, which reads in part:

"... No part of this work, including text, images and computer code, may be reproduced or copied in any form or by any means... without the express prior written permission of Crown Publishing Company, Inc."

Even though it's cased in legalese, isn't the message pretty clear? I mean, do you discern any ambiguity in those words?

Yet when I asked Mr. Gustafson just what it is about that Notice he doesn't understand, he scornfully replied by demanding, not once but twice, that I provide him with a list of the images and/or text that I "claim" to have copyright to. Sigh. Once again, predictably... been down this road before... I was confronted with the reality that sending a personal and courteous message to a copyright violator is a wasted effort. But I tried.

So now the matter is once again in the hands of my attorneys. It'll hafta be my lawyers, and perhaps the courts, who educate this latest bonehead du jour in the unambiguity of copyright law and the net worth-eradicating consequences of thumbing one's nose at a copyright notice. Sigh.

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