If your website is accused of copyright infringement, what's the best way to deal with it in the first instance? I've recently received such a claim from one of the sellers whose product I reviewed. It wasn't my first time receiving a "copyright claim" - it was actually the third time in the past 3 years. I've had a chance to work with a couple of lawyers who are proficient at various copyright issues, so I managed to learn a few basics from them over time. Now is this one real, and have I done something wrong?
The internet is full of fake user reviews, positive or negative, that's bad enough. I need to make sure I'm truthful to the fact so that I don't appear to be making malicious product disparagement. On the other hand, brands often send out cease and desist letters to users who left a negative review and, one of the most effective ways is by accusing them of copyright violation even if it's not exactly the case, my lawyer friend tells me.
The recent claim I received by email wasn't official because the seller is unknown. They sell the product incognito and nobody knows who it is. The email was from the "team" with no name. For that reason alone, I chose to ignore it initially.
Copyright Infringement Notice
Here's the first email that I recently received from the owner of this product, which is a "make money" digital product.
This is about an article on your website: https://cybercashworldwide.com/rece*****
This page contains assets that have been copied from our website at rece*****.com without permission.
The assets that have been used without permission include:
- Images, screenshots and text from our website (including pages that are only available to our customers)
- Images, screenshots and text taken from our product's content
You are displaying copyrighted content from our website (including pages which is only available for paying customers and not for the public) on your own website. You have also purchased our product and published copyrighted content from the product (which is only available for paying customers) to the public for your own benefit and for the purpose of promoting your own product. This is a copyright violation and a breach of our terms and conditions.
We would like the page with the article containing these copyrighted assets from our website to be taken down. If you don’t comply with this, we will send a DMCA takedown notice.
Please get back to us about this as soon as possible.
It seems that the seller sent out this email to all the bloggers who had written a negative review of this product, and those targeted bloggers subsequently deleted their review article, fearing legal action.
Copyright or not copyright, my problem is elsewhere. I bought this product and I'm unhappy with it. I think it's grossly misleading, I don't recommend it to any of my readers. And I have the right to say so. Now the seller with no name tries to eliminate all the negative reviews by threatening them with legal action in the name of "copyright violation." I had written my review in good faith, there was no way I would take the page down.
But this person ("team") was primarily accusing me of copyright infringement, so I showed my review page to my lawyer friend and was advised to remove the product image screenshots unless I genuinely felt necessary for the interest of the audience. They wouldn't be, so I removed a couple of them from the page and blurred out the feature image.
Thanks for your emails. I have worked with copyright & trademark lawyers for several years, so I think I can help you clear the confusion.
Firstly, a copyright infringement refers to a publication of a stolen content - copyright owner's content, pretending to be your own. In no part of my "Rece***** review" displays any of your content as if my own creation. Therefore this is not the case of DMCA 1998.
Secondly, and more importantly, fair use of copyrighted material for public benefit purposes does not interfere with the owner's rights.
What it means is, this is a product review, sharing my honest opinion of Rece***** based on my own experience. Sharing a summary of actual product content is not a copyright infringement, because it helps consumers.
In other words, product reviewers are free to say whatever they want to say, so long as they're not lying about the actual product. I display some of the actual content to prove that I'm not making it all up. I feel I have to, for the benefit of the public, and I am legally allowed to do so.
Thirdly, unauthorized use of images. This is often a grey area - screenshots of the product only available to paid customers can help the public, but at the same time, they're not "my own creation”. Some of my readers may think I've designed those images myself, though very unlikely. Anyway, the relevant images are now blurred out just to avoid any troubles.
I hope the above explains. If you find any part of my Rece***** review giving false information, please don't hesitate to leave a comment on the page, I'll be more than happy to correct it.
2 days later, I received a reply from the "team".
Your website is a commercial website, and your claim about fair use for the benefit of the public will not hold ground for this reason. Your use of our content is clearly commercial.
It’s not fair use to use copyrighted content that belongs to others for commercial purposes (to promote your own offer, which is what you are doing).
Using brands that belong to others and copyrighted content from their websites on your own website for the purpose of promoting your own product is not legal.
We have clearly informed you that you do not have permission to use our copyrighted images. However, you are still displaying our images and screenshots from our website on your page.
It is not enough to blur out images. All images on our website and our website itself are our creations and you are not permitted to use any of this content in any way. You must remove it from your website.
You wrote: "Some of my readers may think I've designed those images myself...”. That is why they must be removed. You are displaying our content on your website for commercial purposes. This is a copyright violation.
The fact that you have already started removing some images based on our warning proves that you are not as experienced with copyright laws as you claim.
We ask you that you take the page down. You have not complied with our request.
With that being said, it is unethical business practice to portray competing products in a negative way while giving false information for your own benefit.
You wrote: "If you find any part of my Rece***** review giving false information, please don't hesitate to leave a comment...”
Your article is biased and full of false information about our product. You are making assumptions that are clearly based on a pre conceived negative notion about the product. This is not helpful for consumers and is obviously something that you have written up for your own benefit.
In addition to article itself being full of emotional outbursts about the nature of the content in our product, the article itself contains false information. You are making arguments about the credibility of our offer without providing any evidence.
A clear indication of this is that you claim that we are using auto generated voice over and PLR in our product. This is just an example of two of many assumptions that you know you have made.
As you hopefully understand by now, your claim of this being a review for public benefit simply does not hold any ground. You are clearly attacking our brand and product for your own benefit, and while doing so you are using our copyrighted content illegally.
We have done our best to reply to your concerns and we don’t wish to engage in any further dialogue about this.
With that being said, we would like to close this in a mutually respectful way.
We will not give any further replies in this correspondence.
This is our final warning that you have to take the page down within 24 hours, or we may take legal action against you.
The Rece***** Team
As you can see, the seller was now talking about a non-copyright issue, referring to the tone of my review content (full of emotional outbursts about the nature of the content"). If it sounds like it to them, it's their opinion. What's important is I'm telling the truth about what I witnessed and I'm sharing my opinion as a user with other (potential) users.
This is not a commercial website. My affiliate disclosure clearly states that I may receive a commission if someone buys a product via ads displayed on this site. But ads are ads. I don't publish blog posts primarily to divert the readers to any of the ads. I never "attack" this particular brand/product or any brands for my own benefit, as they claim. I criticized them for misleading users and shared my personal opinion. I hope that my following reply has made my intention clear.
Thank you for your email. I'm sorry to hear again that you're unhappy with my Rece***** review. But my previous email didn't seem to be clear enough to explain the position, so please allow me to clarify.
I'm afraid you do not have the right to tell me to "take the page down" for the following 3 reasons.
i. Your identity is hidden.
ii. You must accept the fact that there'll always be criticisms as long as you're selling a product. You cannot "change others" by trying to eliminate every negative review. You certainly cannot threaten bloggers to take legal action for the wrong reason (i.e. copyright.)
iii. You must understand the difference in our positions. I'm not your competitor, I'm a user.
To elaborate the reasons above;
I truly believe that Rece***** is misleading users. Fake success stories and fake photos on the sales page that I've seen many times over the past decade of my blogging experience. If they're real, perhaps you can come up with other ways to prove it on your page? (This is just a suggestion as a user - I don't sell products myself.)
I also believe that the "Wealth Tracker" spreadsheet with the wrong formulas inserted in the cells provides a false financial provision. In my opinion, the users ought to be aware of this.
Thank you, however, for pointing out specifically that a couple of my assumptions were wrong, re: "auto-generated voiceover and PLR in our product", I have now indicated the corrections on my review page accordingly.
My review has no malicious intent. It's fair and unbiased as far as I'm concerned. HOWEVER, it's up to the readers whether to trust my review or not, anyone is free to challenge my opinion by debating.
As for promoting other products on my site - I can promote anything I want. I never specifically say "buy the ones that I recommend instead of Rece*****" (although I'm free to say so - I'm not your competitor, I'm a user.) And it's entirely up to the public to agree or disagree.
My target readers are looking for "make money" programs, therefore if I don't recommend a product that I've reviewed, I make sure to recommend something else that I believe in on the same page, whether I can make a profit from it or not. For example, "Simple Traffic Blueprint" by Philip Borrowman is one that I've been voluntarily recommending to my readers for the past few years. Because Philip does not offer an affiliate program, but it's one of the best in my opinion, it's hard for me not to spread the word. And once again, whether to trust my words or not is entirely up to the readers.
I hope the above explanation is clearer. I wish you all the best.
Tips To Avoid a Copyright Infringement Claim
The topic's gone beyond the copyright issue, so to sum up, if you write product reviews on your website, 2 main things that you should remember;
- Copyright - Limited and reasonable use of copyrighted material is appropriate for public benefit purposes. You often need an image or screenshot to prove that you've actually used the product, to add credibility to your review. This article by TermsFeed might help.
- Review Content - Federal Trade Commission said in 2017 that it's now illegal for a company to sue customers who wrote honest but negative reviews. What you have to make sure of is to stay true to the fact, and when you express your opinion, make it clear that it's your opinion (say "I think", "I assume", "I suspect".)