[Hardaka]

This question came up in another thread, no one seemed positive of the answer, so if there are still lawyers around, I'd like to know this and it could help any future affiliates.

My Location: NY State
Server Location: California
Company: California
Thief: Unknown

The gist, an article from my website was copied and sold to the company by the thief. Company refuses to name thief. This caused me to be removed from google's index, which cut traffic = me damaged. Company claims they owe me nothing for this damage. I think the thief moreso does, but since the company refuses to name him or her, they should pay.

It should be noted, in the affiliate agreement, that jurisdiction is in California, but pretty positive the affiliate agreement doesn't cover them buying stolen work from affiliates then acting like complete dicks about it.

So to file in small claims court, where would the jurisdiction be? New York? California? Unknown state?

And if it isn't the affiliates home state, could they include travel costs in the claim?

[AffiliateHound]

I've previously given my opinion on jurisdiction. As to travel costs, no, they are not recoverable, and if they were, and if jurisdiction were in NY, and you forced the defendant to travel to NY, and you lost the case, you would then be responsible for their travel costs. These things work both ways.

[Afilyit]

Follow the DMCA rules and send the company notice. Threaten THEM with legal action under copyright infringement if they don't reveal the thief. Also, send them a "cease and desist notice of wilful infringement by email. This should scare them enough to reveal the offender.

[Hardaka]

I've previously given my opinion on jurisdiction.
Yep. Just thought I'd create a thread for other affiliates who might have this issue come up in the future, and put the question in a place a lawyer might see it.
Follow the DMCA rules and send the company notice. Threaten THEM with legal action under copyright infringement if they don't reveal the thief. Also, send them a "cease and desist notice of wilful infringement by email. This should scare them enough to reveal the offender.
Unfortunately, it is looking less and less likely like there is any legal action I can take. Or can afford to take. This is the Danmer situation, if you saw any of the posts about it. Small claims was an idea, since legal action costs a lot, and that is not something I could afford.

[Afilyit]

I don't know of the "danmer" situation...but I'll look it up. Copyright Infringement is NOT for small claims. In many cases, you can sue in the state of California. If the "thief" was some little guy, he is most likely not going to find, may even default. Most likely scenario would be he would contact you a settlement. You can even take a chance and defend your yourself, assuming that the little guy would never show up in court. Can be risky though. Copyright Infringement is difficult to enforce. Cases can go on for years, and I'm not sure if you took the time to actually "copyright" your article, although you are still protected to an extent.

One example is the RIAA. They have sued kids, grandmothers, disabled people, for illegal music sharing. People cannot afford to fight the RIAA in court, so the defendants will either default, or settle. And since proof of such infringement is very difficult, if the defendant had some money, it might go to court, but the RIAA would use every trick in the book to extend that trial until the defendant finally cannot afford to fight any longer.


Either way, you should be threatening in getting your content removed from the company's site.

[AffiliateHound]

It would not hurt to at least talk to an attorney who specializes in copyright law to see if you have a claim that is worth pursuing and if it could be handled on a contingency. Most local bar associations have Lawyer Referral Panels where you can have a breif consutation with an attorney in the field you need for a minimal charge, usually around $20.00. Many attorneys also do offer free consultations in contingency matters. Here is a link to the New York State Bar Lawyer Referral Service (http://www.nysba.org/AM/Template.cfm?Section=Find_a_Lawyer&Template=/CustomSource/LegalInfobyCounty.cfm&cty=lrs).

Afilyit - read the other Danmer threads - the material was removed long ago.

[Hardaka]

Oh, thank you for that link and information!

Afilyit: Yeah, the content was removed. Though google caught it and penalized me. I could PM you summary of details or search for danmer, you'll find a few threads about them.

[PetsWarehouse.com]

Copyright is a federal issue not state, you need to go to the BIG boys court.

Federal District

[Hardaka]

Oh really? The idea came up in another thread, so guess the subject of the thread if pointless, oops. Sorry. The post by AffiliateHound definitely made it worth it though. :D

[AffiliateHound]

Copyright is a federal issue not state, you need to go to the BIG boys court.

Federal DistrictThere are causes of action available under state law that can be used, such as breach of contract, unfair competition, a civil claim for the theft of intellectual property, intentional and/or negligent misrepresentation, etc.

[Eric Ewe]

I did not read this up but can you use DMCA as it superseeds the local regulations..

[AffiliateHound]

I did not read this up but can you use DMCA as it superseeds the local regulations..This is part of Federal copyright law. Any litigation based on it would have to be filed in Federal Court. There is no state or local copyright law - the entire area of law is Federal. As I mentioned, though, there are legal theories other than involving copyright law that could be used.

[netnow22]

How can you prove this?

"This caused me to be removed from google's index, which cut traffic = me damaged."

You can't prove the i single article caused your rankings to drop because
1.No one knows the exact SEO algorythm (except Google)
2.Its very unlikely that 1 article cause rankings to drop, Google uses fingerprint technology which allows google to see the original author of document. (providing your copy was indexed first)

[Hardaka]

You can't prove the i single article caused your rankings to drop because
1.No one knows the exact SEO algorythm (except Google)
2.Its very unlikely that 1 article cause rankings to drop, Google uses fingerprint technology which allows google to see the original author of document. (providing your copy was indexed first)
My ranking did not drop. It was removed completely was google's index. Later, maybe google figured it out? I don't know, because it did get re-indexed.

But you are right, I can't prove that. I can only prove someone willfully copied an article from me and sold it.

[markwelch]

When I worked on intellectual-property cases (1990-1993), litigation regarding copyrights was exclusively a federal-court issue: you were absolutely required to file any lawsuit asserting "copyright infringement" in the appropriate U.S. District Court, not in state court.

Unless the law has changed, that's what you'll need to do if you intend to assert a claim under copyright law. However, there might be other claims (such as unfair competition, or deceptive trade practices, etc.) which might be litigated in state court.

But if you sue in state court, you would probably waive your right to later sue for copyright infringement in federal court -- and the defendant might still "remove" your case to federal court, claiming that it's actually a copyright lawsuit.

I litigated a case where this happened: we decided that the major issues in our case were breach-of-contract and other state-law claims, and we filed our lawsuit in state court, asserting no copyright claims. The defendant [seeking delay and increased expense to discourage us] forced 'removal' and then we had to file a motion to have the case returned to state court -- but that little maneuver increased legal fees and costs.

Hire a lawyer. If you don't, you will almost certainly lose (and possibly end up owing the other company's legal fees and costs).

[PetsWarehouse.com]

Mark you left out one small point, how much in legal fees?

About a 10K retainer and then 25-100K

[AffiliateHound]

The reasons behind Hardaka filing a small claim's court action were that 1) damages were minimal (he did ask for $500 to settle the claim), and 2) he would be unable to afford an attorney. It's probably a moot point anyway, because, as was thoroughly discussed in another thread, jurisdiction is most likely in California and he could not go to CA for this purpose. Should he file a small claims action in his state of NY and should the defendant seek removal to Federal court, he would have no choice but to dismiss the claim.

"Removal" to Federal court is not always the correct action. I never did too much Federal court work, but the one and only Federal appeal I ever handled was a case in the 9th Circuit (appeal based primarily on other Federal issues) where the court ruled those issues were moot because the removal was improper, and they reversed the removal order and remanded the case back to state court.

[Hardaka]

It's probably a moot point anyway, because, as was thoroughly discussed in another thread, jurisdiction is most likely in California
Yeah, I thought for affiliates who didn't have access to the thread, putting this topic in the legal lounge might help future affiliates.

I wasn't dismissing anything that was said, if it seemed that way. :)

[AffiliateHound]

Yeah, I thought for affiliates who didn't have access to the thread, putting this topic in the legal lounge might help future affiliates.

I wasn't dismissing anything that was said, if it seemed that way. :)Not at all.

[megamoney]

My ranking did not drop. It was removed completely was google's index. Later, maybe google figured it out? I don't know, because it did get re-indexed.

But you are right, I can't prove that. I can only prove someone willfully copied an article from me and sold it.

There's no way your site is removed from googles index because someone is copying an article from your site.

[Hardaka]

So google just removed it for fun? Google had left the company's page with the copied content on it in its index. Their website was years older.

There was no other possible reason for it to be removed, unless google just removes people completely for no reason?

[megamoney]

So google just removed it for fun? Google had left the company's page with the copied content on it in its index. Their website was years older.

There was no other possible reason for it to be removed, unless google just removes people completely for no reason?

I have seen sites disappear from the index and then show up again many times and never been able to find any logic explanation.
I have yet to see a single duplicate article be the reason for removal. It may be reason for a poor ranking, but not for removal.

[megamoney]

http://www.google.com/search?hl=en&q=%22The+lack+of+mechanical+parts+has+meant+that+the+size+of+these+cameras%22&start=0&sa=N&filter=0

I don't think this would happen if duplicate content get your site de-indexed.

[Hardaka]

That doesn't mean google wouldn't have removed me, might be case by case? No clue. I certainly can't prove it though, and you are doing a good job showing what a lawyer could do in response. Still got the willful copy and selling of my article at least, lol.

[redtagdeals]

ALERT - Danmer is reversing the commissions at higher payout (granted when Geno was there) to lower standard payout

This nullifies any extra commissions they granted to affiliates for causing copyright violations and inconvenience to affiliates