Seven steps for setting up an effective, low-cost copyright enforcement program.

By R. David Donoghue

The online world is a double-edged sword for publishers.

On the one hand, it is a powerful publishing tool bringing content to a much broader audience, with much lower costs than are required to print and distribute by mail. On the other hand, the Internet also allows virtually anyone to copy content with only the most minimal costs.

This new reality has led to a dramatic increase in content theft, both intentionally and accidentally.

The best way to protect content on the Internet is to acquire and enforce copyrights. More and more, widespread content theft is causing organizations of all sizes to consider enforcement programs to protect their content. The good news is that any size publisher can set up an effective, low-cost copyright enforcement program that will protect its content and can even turn the publisher's copyrights into a profit center, in seven straightforward steps:

#1 -- Register Your Copyrights

You have a copyright as soon as you create original content, but to use the federal courts to enforce it, you need to register your copyright. No matter when you register, you can recover actual damages. But actual damages are often hard to prove. And even when you can prove them, they tend to be low compared to the legal fees for copyright infringement litigation.

For example, the actual damages when someone purchases a single-use subscription to an electronic trade publication -- but uses it like a group license by forwarding the publication around an office -- would generally be the difference between the cost of the group and single-use subscription. That difference rarely justifies the six- or seven-figure fees for a copyright litigation.

However, if you register your copyright within sufficient time of the work's publication, you can seek statutory damages. Statutory damages are a legal replacement for your actual damages, (which are often hard to prove, and relatively low compared to legal fees for a copyright case). Statutory damages, however, can be as high as $150,000 per work.

So, going back to the forwarding of the single-use subscription electronic trade publication, if the subscriber forwarded 12 monthly publications over a year, the statutory damages could be as high as $1.8 million, or 12 times $150,000. Statutory damages, therefore, make copyright litigation a viable enforcement tool.

#2 -- Give Notice of Your Copyrights

On the first page of every copyrighted work or on every copyrighted webpage, print a copyright notice in the form of: "Company Name © 2010" (or the year or years the content was created). "All rights reserved". That single statement, properly placed, puts infringers on notice of your copyright, and if your copyrights have been properly registered, allows for infringements to be deemed willful, resulting in potential damages up to $150,000 per work. Without the notice or other proof that the infringer had actual notice of the copyright, the maximum statutory damages drop to $30,000 per work.

#3 -- Keep Track of Your Content

To prosecute infringers, you need to show that the infringer had access to your content. For print content, you can use sales records. For Internet content, you can use statistics software like Google Analytics. These software packages will tell you which IP addresses accessed your website and which pages were visited. The IP addresses can then be used at least to identify companies or individuals that accessed your content. If you are sending out digital content via the Internet, you can modify your subscription agreement -- or terms and conditions for member-benefit content -- to allow you to track the use of the electronic file you send. Tracking can identify electronic copying (forwarding) of your content.

#4 -- Set Traps

The hardest part of making a copyright case is often proving the copying. A simple fix is adding something distinct or obscure to your content. Consider adding an obscure Latin phrase, removing a hyphen from a normally hyphenated word, or choosing the British version of a word. It is surprising how frequently copiers do no proof-reading or editing of any kind.

#5 -- Police Your Content

Turn the tables on content thieves. Just like they use the Internet to get your company's content at no cost, you can use the Internet to catch them at little or no cost. Set up an automatic search (for example, using Google Search) that will search the Internet daily for the special word or phrase you added to your content, or for a distinctive sentence in your content. That way, you can stop the theft almost as soon as it happens.

#6 -- Customize Your Terms and Conditions

Draft the terms and conditions specific to your particular content. Write them in plain English, in a large enough font for a user to read them, and place them prominently throughout your website. The more understandable the terms and the more prominently they are displayed, the more likely that a court will hold that they control the case.

In the terms and conditions, make clear what rights your user is granted -- for example, whether they are granted a license for personal use only or have some rights to forward or reproduce the content. If the content is electronic, consider a statement that you may place spyware on the user's servers to track the use of the copyrighted materials. That allows you to gather reliable evidence of any infringement that will simplify later copyright infringement cases and help force quick settlements.

Additionally, make sure to identify any limits you want on discovery and specify that statutory damages will be available. And whether you choose to arbitrate or to litigate in federal court, identify which city the arbitration will be conducted in, or which district court should have exclusive jurisdiction over any cases related to your company's content.

#7 -- Establish a Plan and Take Action

Set up a protocol for dealing with infringers. As soon as your tracking efforts identify a new infringer, have a plan in place for gathering evidence, stopping the infringer, and either settling with the infringer or pursuing legal action. You should also set criteria for how to respond to different types and levels of infringement. This saves the time and expense of having to make individual decisions about each infringer.

As soon as your publication identifies an infringement, investigate the extent of the infringement and follow the criteria you established. You are free to immediately file a lawsuit, but in many cases, you can save money and hassle by sending a strongly-worded cease and desist letter first. Having the letter sent by counsel adds credibility. Identify the copying, attach your copyright, and demand whatever corrective actions you want -- whether it is simply removing the content, or removing the content and a cash settlement. Make sure to give a response deadline. A deadline shows you are serious and avoids unnecessary delay.

The enforcement mechanisms outlined in the seven steps above are powerful and relatively inexpensive to implement. The simplicity and relatively low cost of this plan means that it can be used by publications of all sizes -- not just by the Fortune 500 companies. Content providers, both large and small, have generated real profits from enforcement techniques like these, in addition to protecting their content and their current revenue stream.

R. David Donoghue is a litigation partner in Holland & Knight's Intellectual Property Group. Additionally, Donoghue founded and authors the Chicago IP Litigation Blog, where he analyzes intellectual property cases in the Northern District of Illinois. He can be reached at david.donoghue@hklaw.com, 312-578-6553, or www.chicagoiplitigation.com.

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Smartphones may overtake computers in popularity as early as next year. Is it time for a mobile edition of your publication? Find out what other editors are doing.

By Meredith L. Dias

Should you consider a smartphone or iPad edition of your publication? The magazine industry continues to evolve at meteoric pace thanks to widespread integration of smartphone and tablet computer technology. What was cutting edge a year or two ago is fast becoming passé. You don't want to be left behind.

Changing Market Demographics

Computer sales have long been on an upward trajectory, but a recent RBC Capital Markets chart indicates that smartphone sales will overtake computer sales by 2011! This, for many, is a daunting thought. Even more daunting, research suggests that mobile devices will become the primary Internet browsing devices within ten years.

Magazines have already undergone recent technological metamorphosis. They have had to develop functional websites, adapt to online writing and editing standards, design digital editions, and crack the online profitability cipher. Now, all signs point toward mobile devices as the next Internet wave. If magazines are to keep their readers, they must align themselves with their readers' preferred technology.

If you are already taking steps to establish a smartphone edition, you are ahead of the curve. If the projections hold and smartphones overtake computers as Internet browsing devices, all online magazines will need to be ready with mobile content.

Mobile Edition Design

Keep in mind that a mobile edition of your magazine can take many forms, some of which are fairly inexpensive and low-maintenance. While some mobile editions are full-featured, interactive apps with pictures and ads, others are simple digests of an issue's key material.

Nick Batzdorf, editor and publisher of Virtual Instruments, says, "We don't make the iPhone edition a big production. It's basic text and pictures with no proper layout." Some publications offer up similar digests on extensions of their home domains (e.g., http://mobile.columbusparent.com, http://mobile.informationweek.com, http://mobi.mufranchisee.com/news/features/, http://mobile.washingtonpost.com, etc.), where layout is optimized for smartphones.

"Simplicity is key," writes Steven Snell in Smashing Magazine for January 2009. "Because of the lack of space on the screen and Internet connections that are often slower, it's important for visitors to have access to what is most crucial, and as little else as possible." Small screen size necessitates the use of white space, an important design element for magazines on any platform. Though publishers of mobile editions face potential design challenges, programs like Adobe Creative Suite (including Adobe InDesign) can help simplify the process.

Reasons for Developing Mobile Editions

This month, we talked to various magazine editors about their mobile editions. Batzdorf tells us that the mobile edition of his specialized music industry publication has been quite successful. When asked about his reasons for developing an iPhone edition, he says, "When you go to the industry trade shows, there are maybe three people without an iPhone. [Having an iPhone edition] makes sense."

Other publishers, even those with no current plans to develop iPhone apps or editions, recognize the mounting popularity of smartphones and tablets. "We don't have any deliberate plans to create apps for our pubs yet, because I'm just dipping my toes in with eBooks," says Bridget Struble, program director for publications at the American Society for Parenteral and Enteral Nutrition. "Apps have even less universality, and apps are so expensive. But if people start asking for these in 2011, we'll have to consider them."

Peter Meiers emphasizes the importance of smartphone editions in the September/October 2010 issue of Signature: "The smartphone is really the primary, non-print publishing channel," he says. "The ubiquity of use -- and if you set it up correctly -- the ease of the publishing cycle is pretty easy to do. ... With a growth of 38 percent a year, it's a good bet that you're going to find an audience that way."

Even if your publication has limited resources, a mobile edition is still practical. "The fact of the matter is that it's very inexpensive," says Meirs. And, with smartphone and mobile device use undergoing such astronomical growth over the next ten years, it may be an investment many online publishers can't afford not to make.

When a Mobile Edition Doesn't Compute

Still, although smartphone use is rising and, as a result, more and more magazine consumers want mobile editions of their favorite publications, it may not always be advisable to launch a smartphone edition. "At this time, we have a limited new-media presence -- on purpose," says Kathy Storring, editor of Grand magazine in Ontario. "Our readers and advertisers seem to appreciate the paper product as is, so until we have solid prospects for additional advertising online, we are targeting our limited workforce to our paper product. Our website (www.grandmagazine.ca) promotes the current issue, highlights a few articles, and lists our advertisers. So we have no plans for iPhone publishing."

That said, Storring's parent publication, the Waterloo Region Record, "has a very active website and the editorial team is hoping smart-phone publishing will be in place very soon." A mobile edition makes sense for the newspaper, as its online presence is already thriving. In the case of Grand, whose online presence is much more limited, an iPhone edition would be of limited value to the audience.

A Simple Solution

Batzdorf has some advice for editors and publishers considering adoption of an iPhone edition: "Make it simple to put together. It doesn't have to be as splashy as a real magazine. Ours takes only a few hours to put together." Most important is keeping smartphone users engaged with content that is easily accessed and read on their mobile devices.

If you are a large publication, you may have the resources to design a splashy mobile edition with full-color spreads and interactive features. If not, that doesn't mean you can't create mobile content of value to your readers. A simple digest of your publication's current contents, with clickable links to individual articles, can be a nice bonus for mobile subscribers. Whether they are on their lunch break, on a plane, or at home, they will have perpetual access to your magazine.

Meredith Dias is research editor of Editors Only.

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Aids for writers that you can put to use in your editorial department.

By Peter Jacobi

I bring to your attention three books that might prove mighty useful and, lo and behold, they proved mighty interesting to read.

A Dictionary for Writers and Editors

That may seem unlikely with a new dictionary for writers and editors, but the title of this particular lexicon is Bill Bryson's Dictionary for Writers and Editors (Broadway Books). Bryson, whether he's writing an essay or a full-length nonfiction book or a work of fiction, always gives free access of his personality and imaginative mind to enrich whatever he tackles.

The opening paragraph of his preface tells you what to expect. In part, it says: "This book is intended as a quick, concise guide to the problems of English spelling and usage most commonly encountered by writers and editors. How do you spell supersede and broccoli and accessible? Do I write archaeology or archeology? What's the difference between a cardinal number and an ordinal number? ... Doesn't Calcutta have a new name now? (It does -- Kolkata.) What do we now call the Chinese river that I knew in my school days as the Hwang Ho?"

You'll find out, from Aachen to Vladimir Zworykin. And a punctuation appendix follows.

If you want to try the word "enormity" for size, don't. Bryson's dictionary says: "Enormity does not, as is frequently thought, indicate size, but rather refers to something that is wicked, monstrous, and outrageous ('The enormity of Hitler's crimes will never be forgotten'). If what you require is a word denoting large scale, try 'immensity' or 'vastness.'"

Queen Elizabeth II gets this treatment: "(1926-) Her formal title, though seldom used, is Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her Other Realms and Territories, Queen Head of the Commonwealth, Defender of the Faith. She became queen in 1952; her coronation was in 1953."

It's a great guide, amazingly inclusive (continual/continuous, entente cordiale, hara-kiri, Illinoian, Mafeking/Mafikeng, mutual/common, Poseidon, sangfroid, saccharin/saccharine, tautology/redundancy/pleonasm/solecism, Teatro alla Scala, whether or not, zeitgeist). The answers or solutions are there, simply put, absolutely clear.

Debunking the English Language

Along also comes Origin of the Specious, subtitled Myths and Misconceptions of the English Language, this by Patricia O'Conner and Stewart Kellerman (Random House). O'Conner is known for her bestselling Woe Is I. Kellerman is her husband, a former editor for The New York Times.

The two set about to debunk a book-full of "beloved ideas about English" that, they say, "are bunkum." They defend, for instance, a recent resident of the White House: "Nobody ever said the W in George W. Bush stood for Wordsmith. But our former President doesn't deserve the knuckle rapping that many wordies have given him for his famous pronunciation of 'nuclear.' The word has been mispronounced so often and so publicly that NOO-kyuh-lur is gaining a foothold in dictionaries." A thorough and brightly considered discourse follows.

Further along, amidst the profusion of set-straights, O'Conner and Kellerman state: "Perhaps you dis the verb 'disrespect,' snubbing it as a gangsta interloper from the world of hip-hop. Well, chill. This so-called bad boy is getting a bum rap. 'Disrespect' is a perfectly respectable verb that's been around since the 1600s." So, too, respectable, they insist, are other "African-American slang words that have come in off the streets and enriched the language" and "don't deserve to be dissed," such as "chill," "cred," "phat" (first-rate), "bling" (flashy jewelry), and "gangsta."

I'll share one more debunk, the initial paragraph in still another whack at grammar traditionalists: "If my email is any indication, half the English-speaking world lies awake nights, grinding its teeth because the other half says 'I could care less' when it means 'I couldn't care less.' If your enamel is starting to wear down, my advice is to care less. It's true that the original phrase was 'I couldn't care less,' which makes more sense. But since when do idiomatic expressions have to make sense?"

You get the tone employed, I'm sure: it makes for easy reading, and pleasant, even when you might disagree, as I do now and then, with the point being made. The points are numerous: acronyms, "crap," gender, foreign words and phrases, "paint the town red," "niggardly," malapropisms, spoonerisms, "octopi" vs. "octopuses," "irreligious" and "nonreligious," "ain't," and on and on.

Literary Quality Writing

Stephen Pyne's Voice & Vision, A Guide to Writing History and Other Serious Nonfiction (Harvard University Press) assumes a more serious style, but stuffy it is not. And although it focuses on the writing of history, author Pyne passes along recommendations that we all can use to our advantage. To write history requires scholarship, yes, but a historian, says Pyne, also must write literature.

Well, journalists create a form of history, an immediate one, and -- to gain and keep an audience -- they must, we know, aim for literary quality, for writing worthy of being read. Voice & Vision provides commendable assistance.

"There are only two rules specific to nonfiction," states Pyne. "The rules are nonnegotiable: you can't make anything up, and you can't leave out something that really matters -- meaning something that, if included, would alter our fundamental understanding." Need I say we work by the same rules?

Pyne, later on in the chapter, sums up his exposition. "Don't invent," he warns, "and don't leave out what needs to be in. Beyond these, rely on prudence, humility, boldness, wit, common sense, and a recognition that theme and design have to support each other. If one is wrong, it will pervert the other. A theme at odds with its expression will be unconvincing, even ridiculous."

We've spoken on a number of occasions about thesis/theme, development, and structure. That's what Pyne is arguing for. He also argues the importance of transition. It should occur "at all levels, in the movement from one sentence to another, one paragraph to another, one scene to another, one chapter or part to another." Does that sound familiar to you, my readers?

Aha, and further along, the author reminds us: "Drama is what keeps readers turning pages. The slickest transitioning, the wittiest voice, the most elegant phrasing will not hold their attention for more than a few sentences. What matters is their urge to know more, to see what comes next, to understand how the narrative or argument works out ... They must care what comes next. Why did that happen? How? What's the point? So what?"

Pyne doesn't simply pose these issues. He digs into them and gives us ways and means. Again, I think you'll find value.

Peter P. Jacobi is a Professor Emeritus at Indiana University. He is a writing and editing consultant for numerous associations and magazines, speech coach, and workshop leader for various institutions and corporations. He can be reached at 812-334-0063.

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Assessing the readability of a book excerpt published on NPR.com.

This month, we examine a passage from NPR.com (an excerpt from Tom Bissell's book, Extra Lives: Why Video Games Matter):

"For a while I hoped that my inability to concentrate on writing and reading was the result of a charred and overworked thalamus. I knew the pace I was on was not sustainable and figured my discipline was treating itself to a Rumspringa. I waited patiently for it to stroll back onto the farm, apologetic but invigorated. When this did not happen, I wondered if my intensified attraction to games, and my desensitized attraction to literature, was a reasonable response to how formally compelling games had quite suddenly become. Three years into my predicament, my discipline remains AWOL. Games, meanwhile, are even more formally compelling."

--Word count: 105
--Average sentence length: 18 words (23, 20, 14, 32, 9, 7)
--Words with 3+ syllables: 22 percent (23/105 words)
--Fog Index: (18+22) x .4 = 16 (no rounding)

In this case, the average sentence length is within reasonable range. The 32-word sentence skews the average -- without it, average sentence length is 15 words. However, it is the high percentage of long words that makes this Fog score so high.

Let's try revising the sample to improve our score:

"For a while, I hoped that my trouble concentrating on reading and writing was the result of a charred brain. I knew my pace was unsustainable and figured my discipline had treated itself to a Rumspringa. I waited patiently for its return to the farm, contrite but refreshed. When this didn't happen, I wondered if my intense attraction to games and waning attraction to books was a response to how formally compelling games had become. Three years into my problem, my discipline remains AWOL. Games, meanwhile, are even more formally compelling."

--Word count: 92
--Average sentence length: 15 words (20, 16, 13, 27, 9, 7)
--Words with 3+ syllables: 13 percent (12/92 words)
--Fog Index: (15+13) x .4 = 11 (no rounding)

Overall, we were able to trim word count by 13. The language in the original sample was quite dense, so reducing our Fog score was largely a matter of eliminating longer words and trimming excess language.

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