How Does the DMCA Affect My Business and Trademarks?
This article originally appeared at: https://www.sarahsshepard.com/blog/dmca-and-trademarks
With everything online these days, you can’t be too careful with the content you create for your website and other digital platforms. This is especially true for the content you plan to use that isn’t yours.
The last thing you want to do is find out that someone else is using your copyrighted content without permission.
When something like this happens, it’s considered a DMCA violation, and it could have some serious consequences.
In this article, we’re going to break down the DMCA laws and discuss what they mean for your business and established trademarks.
Read on to learn more.
What Exactly Is the DMCA? DMCA stands for the Digital Millennium Copyright Act. It’s a United States federal copyright law introduced to the public in 1998 as a set of laws meant to protect online content among all digital mediums.
Before the DMCA, there were some regulations in place to protect digital content. The DMCA changed the landscape by giving anyone who owns a copyright more control over who can use their work and how.
The set of laws that fall under the DMCA are a group of treaties signed in 1996 by the World Intellectual Property Organization (WIPO) Geneva Convention. These treaties specifically addressed the issues that directly affected photographers. Now, however, the laws now cover nearly all types of content used on the internet.
Additionally, under the DMCA laws, there is also limited liability for internet service providers (ISPs) and digital platforms that play host to copyrighted content. Essentially, this means that individuals cannot upload any content onto their websites that doesn’t legally belong to them. I.e., photos, music, videos, artwork, etc., cannot be shared without the rightful owner’s consent.
Anyone who is found to violate the DMCA laws will be forced to take down/delete the copyrighted content from their website or platform.
When a DMCA violation is committed, the violating party will receive a notice asking them to take down and delete the content immediately. However, failure to comply will result in their account or website being suspended by their Internet Service provider.
Additionally, they could be subject to either civil or criminal penalties. Depending on the offense, the copyright law violators could end up paying upwards of $30,000 in civil fines and other damages. In more severe criminal cases, violators could face jail time up to 10 years and up to $1 million in fines.
What Is a DMCA Claim? When someone violates the DMCA laws, the owner of the copyrighted materials can make a DMCA claim, leading to the violator receiving a DMCA Takedown Notice.
According to the DMCA laws, any hosting providers must remove or disable access to any websites that are potentially found in violation. The ISPs will not be found liable for displaying the content that infringes upon the copyrighted materials. However, they must remove the copyrighted materials following receipt of the notice.
Some of the most common DMCA violations include:
Using copyrighted photos on a website page or blog post
Plagiarizing written content from another site or blog post
Displaying or streaming unlicensed music or videos on a website used for streaming or downloading
However, it should be noted that the DMCA has a Fair Use Policy which designates that some specific copyrighted content may be used to a certain extent. For example, it’s legal to use copyrighted content under the context of “transformative purposes,” which involves building upon the original works or creating something new from them.
Another instance when copyrighted content can be used is for non-commercial purposes or in a situation where the use of the content won’t degrade its original value.
Of course, regardless of whether you’re in the realm of the Fair Use Policy, it’s always in your best interest to get the content owner’s written permission.
How Do You File a DMCA Claim? If you come across another website or platform using your copyrighted content, you’ll want to file a DMCA claim immediately.
Having said that, it’s crucial that your DMCA claim includes all of the necessary information and is written correctly. Otherwise, it could be deemed invalid, and the website in question can legally dismiss your DMCA violation report.
Therefore, your claim should include the following:
Either your physical or electronic signature
Proof of identification of the content being infringed upon and who it belongs to
The location and identification (web address) of the content you want to be removed
Your address, phone number, and email address (so you can be contacted)
Certification that the content is being misused or used without permission by the copyright owner (you), its agent, or the law
Certification that the information in the claim is correct and that you are the owner or an authorized entity that may act on behalf of the copyright owner
Additionally, before sending out the claim, there are a few things you need to verify, including:
Your ownership rights to the copyrighted content in question or your request to send the claim of infringement
That the supposed infringement is not covered by the DMCA’s Fair Use Policies or free speech
That the content in question is in one of the following digital formats:
Text : TXT, RTF, DOC, DOCx, PDF, PPT, PAGES
Images : BMP, EPS, SVG, JPG, JPEG, GIF, PNG, PSD, RAW, TIFF
Video : MPG, AVI, RM, MOV, Quicktime, Windows Media Player, RealPlayer
Music or audio : AIF, AU, MP3, MP4, MIDI, WAV
Images sourced on : Facebook, Tumblr, Pinterest, Flickr, Instagram, etc.
In addition to the above information as proof for your DMCA claim, there are a few extra steps to effectively file the Takedown Notice.
Those steps include:
Making sure you locate the correct person Suppose you find out that your copyrighted content is on someone else’s website. In that case, the first thing you need to do is figure out who exactly is the hosting company of that website.
This can be quite a challenge as these websites tend to shift their online locations often to avoid getting caught.
At the very least, you should be able to narrow down who the ISP is, primarily if your content is found on a blog site like WordPress (WP), Blogger, or LiveJournal. These websites will always clearly present their contact information.
Finding the Correct DMCA Takedown Forms to fill out Aside from contact information, many of these websites also provide specific forms for DMCA Takedown requests.
These forms should be first used to initiate contact as they’ll garner the quickest response. After that, most prominent websites, including search engines, use these forms to send the claims to designated departments to take care of them.
Sending the notice to a DMCA agent When you can’t find an online form on the website in question, you’ll need to send your Takedown notice to the correct DMCA agent in the position to handle your case. Your claim will also have to be sent in according to their specifications, such as using their forms.
Some agents don’t take requests by email. Instead, they prefer receiving a fax or a letter sent by registered mail.
Suppose you can’t find the contact information on the website in question. In that case, you can always search the US Copyright Office’s list of DMCA agents .
What Does the DMCA Mean For My Trademark? The DMCA laws don’t apply to trademarks — only to claims of copyright infringement. Therefore, they don’t provide legal protection against trademark infringement, regardless of whether the claim is infringement, dilution, or cybersquatting .
Of course, the good news is that if you’ve already trademarked your business, then you have strong protection against violations if you maintain and renew that trademark. Therefore, you don’t have to worry about going through the above-listed steps to find a solution.
However, just because your trademarks are safe, that doesn’t mean your business is. For example, suppose you don’t establish IP licenses for your website or maintain your copyrights appropriately. In that case, you could be at risk of losing everything you’ve worked so hard for.
Contact us today to schedule a consultation with Sara S. Shepard or another experienced Huntsville intellectual property lawyer. We can help you protect your business’s online presence under the DMCA and related laws.