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How I Learned to Love the DMCA

We’ve read about startups having their design, code, and content ripped off, but it didn’t prepare us for the emotions we felt when it happened to us. Take heart, startups! Below is a story of how a startup took a big step protecting their IP — in just 36 hours.

Over the last two days I have been getting a lot of questions about our relationship with the largest real estate brokerage in Canada, Sutton West Coast (our cease and desist order was covered by Geekwire yesterday). For the past three years, Estately powered Sutton West Coast’s real estate search. We mutually agreed in November of 2011 to end our relationship and that they would have through March to transition to a new site. We offered multiple times to help them select a new vendor and to give them feedback on the product they were building as we wanted to ensure a smooth transition (we were declined on all fronts).

Last week we were surprised to see the new search hosted by their new vendor at search.suttonwestcoast.com. It made extensive use of our IP, including our design, HTML, images, CSS and Javascript. The site was not merely a near-perfect clone of Estately from November 2011, it was a clone that uses our code and copyrighted materials.

Obviously no startup wants a clone of their front-end intensive website floating around out there. The list of ways it can damage your business, your opportunities and your ability to raise capital and eventually sell is too long for a single blog post (just imagine reaching out to a reporter only to have them ask you why you copied another site or imagine trying raise money when a perfectly identical site is out there – Yowza!).

Last week we tried to work things out with Sutton West Coast. I started with a simple phone call. They said they were surprised to learn that their product was a virtual clone of Estately and that they would look into it and call us back. It seemed odd, but I gave them the benefit of the doubt. I ended the call feeling confident they would pull it offline and we’d be all set by morning.

A day later, we hadn’t heard from them. I tried the phone again (no answer) and decided we needed to get something in writing before the weekend and we realized that meant a cease and desist letter. I always assumed the first cease and desist order I would see would be from a big company using it to oppress my startup, not that I would be issuing it to protect us.

We ended up waiting all weekend and most of Monday in silence. I called again and this time got their CEO who told me they didn’t know if the site was a copy and that they would get back to me when they had looked into it more. Then nothing for the next day and a half.

We were getting stalled.

So finally we did something I never thought I would do: issued our own DMCA takedown notice.

The DMCA is the only law I know that operates at startup speed: Amazon responded within 36 hours and took down the infringing materials.

The DMCA isn’t a panacea (some parts are horrible), but it has some real strengths that level the playing field for startups and make running a business efficient. In particular:

  • Accessibility: We filed a DMCA takedown notice with just one or two hours of work. Attorneys are optional. In a DMCA-free world, our IP could have continued floating around for weeks before a court would hear us and we would need to spend thousands of dollars on attorneys leading up to that point.
  • Speed: Big companies can bury a startup like Estately in paperwork and distractions and can run up a big legal bill in advance of a judgement. Distraction is bad for big companies, but it can kill a startup. The speed of the DMCA means we can get back to work building a business.

The law is supposed to create a level playing field and good law should be clear enough that court cases should be safe and rare. The DMCA passes that test with flying colors.

Are we in the clear? No. Sutton West Coast is a big company – they’re the biggest real estate brokerage in Canada with over 1,700 real estate agents spread across 17 offices – and they could move their hosting to somewhere outside the reach of US law tomorrow.

I never thought I would utter these words, but this week I was thankful for the DMCA.

A few screenshots for the curious:

More Screenshots and a code sample below:

  • http://lianza.org/ Tom Lianza

    The copy is abundantly clear, but the filename “estately_ui_sprite.png” just really takes the cake.  Good luck!

  • http://twitter.com/UtahMarshall Marshall Haglund

    Heard about this from @Randfish. Good to hear about the success. [Editorial - In paragraph 6, you repeat "we needed" twice]

  • galenward

    Thanks for pointing that out Marshall.

  • http://robiganguly.com/blog Robi Ganguly

    Good for you Galen. Thanks for sharing, this is really helpful stuff. 

  • http://twitter.com/toddhooper Todd Hooper

    Good post Galen. I can certainly see the good side of the DMCA too. Hell, it’s not a normal week at Zipline unless I’ve sent a couple of DMCA requests to take down pirated versions of our software. Although I’ve seen less of it since Megaupload went offline…
     

  • http://blog.CascadeSoft.net @CascadeRam

    I’m glad to see that DMCA is effective and that you were able to put it to good use.

    Too often, many people in the tech world attack the notion of copyrights and suggest that everything should be free for reuse (based on the notion that copying isn’t “theft” and shouldn’t be illegal because the original wasn’t removed).

    I hope these people realize that copyright violations hurt all creators (including tech companies) and that the hurt isn’t just limited to book-authors, movie-creators etc.

  • http://www.qwikmobi.com/ QwikMobi

    Thanks for sharing, imperative for Startups to share such knowledge/experiences.  

  • http://twitter.com/fettemama fettemama

    That’s why I think ACTA would be actually a good thing. It’s like the DMCA but with more powers for creators and less for parasitic consumers.

  • xp84

    Do you know how your application’s source code leaked? Seems like a parallel discussion should be had about how to make sure (employees? contractors? crackers?) don’t walk out the door with the keys to the kingdom, so to speak. A difficult nut to crack all by itself.

    Hope you’re successful against the attack of the clones.

  • http://www.cowhidesrugs.com/ Matt Wilson

    I’d like to chime in with some past experience on a DMCA situation.

    We got copyright on our web materials (mirrored the whole website into a DVD) and got copyright papers in 4 months (expedited). Lawyers submitted DMCA requests to other company – Yahoo and Google. Yahoo took their pages down from their index in couple of days. It took weeks for Google to do something about it but they did it afterwards.

    The case went to litigation and settled with mediation. 

  • http://twitter.com/rerouse Robert Rouse

    They cloned the front end. HTML/CSS/Javascript could only be obfuscated to a certain extent anyway. So there was no leak in the traditional definition of leak.

  • xp84

    Oh. Wow. I would have thought that the backend would be the tough part to do… after going to the trouble to do build the app, it seems kind of silly to painstakingly craft the output to be just like yours in order to use your CSS and Javascript.
    The lengths some people will go to avoid originality…

  • http://twitter.com/luckylou Luis Antezana (luckylou)

    Glad your work got protected. IP and copyright protection are like police or tow truck drivers – generally unliked until they can help you. Imagine how recording artists feel having their hard work stolen every day by thousands.

  • http://twitter.com/RobbiePaplin Robbie Paplin

    Glad to hear you were able to put a stop to this quickly.

    I’m dumfounded they were lazy/unethical enough to copy your front end work, and yet they’d go through the trouble of implementing a compatible back end. The lengths some people go to to avoid HTML/CSS/Javascript coding, I suppose…

    Be thankful they hosted their site in the US. I can imagine the hell you’d go through if it was hosted in China or some other country doesn’t have the IP laws the US has.