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Attorney Wayne
Attorney Wayne, Lawyer
Category: Intellectual Property Law
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Experience:  Practicing Law Since 2000
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We paid a php developer to create a php file for us to use

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We paid a php developer to create a php file for us to use and he gave us full rights to the file and everything. We integrated this php file into our hosting and about a 2-3 weeks later we found out that someone had stolen the file, the hosting didnt have correct .htaccess setup so they just right clicked and downloaded the file, kept the file the same name and are getting the same error we were getting before we had it fixed. We have proof we own the file with logs of transations and file dates stamps as well as conversation about the file being created for us and for only our use between us and the dev. How would we go about asking them to take down the file and if they dont, whats the best course of action as they are using the file to bring in donations?
Hello. Thanks for contacting us.

The key question here is who owns the copyright. The copyright begins once something is created and put in a tangible form (not just an idea in someone's mind).

If a developer assigns or transfers rights to an organization (or if the organization can show it was a "work for hire") then it owns the copyright.

If this is the case, the first thing I would do is register the app with the US copyright office. Registration is the prerequisite to legal actions to enforce a copyright.

Its not very expensive, and it can be done online:

There are several possible strategies from there.

They include:

(1) Using the Digital Millennium Copyright Act (DMCA) notice and takedown procedure. For this, its necessary to notify whomever is hosting an infringing use of the program that there is infringement, and you are demanding it be taken down. Here are links with more details on the process:

The thing about 'notice and takedown' is that the infringer can claim there is no infringement and the material can then go back up.

Which means that it may be necessary to take stronger legal action (or one could do that in the first place -- depending on goals).

Here's where registration of a copyright is important. Registration is prerequisite for a law suit. Also, it allows to collect either the actual value of the infringed material lost due to the illegal use, or a set amount (its on a sliding scale), known as statutory damages. For non-blockbuster copyrighted things, the statutory damages can often prove more valuable -- to the tunes of thousands of dollars more valuable.

Its important to save any evidence of the infringement, including any email exchanges with the infringer.

Ultimately, it may be worthwhile to get a lawyer's help should the simple notice and takedown not suffice. Because of the statutory damages, you may find lawyers willing to take a strong case without upfront fees (known as "on contingency.") The lawyer gets paid as a percentage of the settlement or judgment once collected. While a winning plaintiff may pay more this way, since some cases are not successful, the costs and risks fall on the lawyer. Contingency cases are also a good way to evaluate a case. Most lawyers who do this kind of work don't want to waste time with cases that can't win.

I wish you all the best as you seek resolution in this matter.
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