Dealing with Copyright and Trademark Infringement on the Internet and Social Media
Have you ever found your copyrighted material online without your authorization?
Service providers, like website hosts, can be held liable for infringing material posted by users of their services under theories of direct and indirect infringement. However, the Digital Millennium Copyright Act (DMCA) affords service providers a safe harbor if they comply with provisions of the DMCA. To avoid liability, service providers must act expeditiously to remove or disable access to the infringing material upon receiving a DMCA compliant takedown notice.
To be compliant with the DMCA, the takedown notice must
- identify the infringing material and provide information, such as a URL, to allow the service provider to locate the material
- identify your copyrighted material that is being infringed
- include you or your agent’s direct contact information
- include a statement that you or your agent are acting with a good faith belief that the infringing activity is unauthorized by you, the copyright holder, or the law
- include a perjury statement confirming the information is accurate and that your agent, if applicable, is authorized to act on your behalf
- include your or your agent’s signature
After the service provider has removed or restricted access to the content, the third party may challenge the takedown by filing a counter-notification. The service provider will review the counter-notification and may reinstate access to the material if they determine that there is no infringement. If this happens, the copyright owner may file a lawsuit to address their claim.
In order to streamline this process, many service providers have created forms that allow copyright owners or their agents to submit compliant takedown requests online. Otherwise, you or your agent can draft and send a takedown request to the service provider’s legal team or copyright agent.
What about trademarks? The DMCA does not address unauthorized use of trademarks, but many service providers have adopted an intellectual property policy that prohibits users from infringing on the intellectual property rights of others. Some providers have also created online forms that trademark owners can use to report unauthorized use of their trademarks online. These forms require similar information to a DMCA takedown request and typically require proof of ownership of a federally registered trademark.
While the process may seem straightforward, it is not without its difficulties. Common difficulties include identifying the proper service provider to contact and dealing with unresponsive service providers.