Is trademark and copyright law worthless in the social media age?

The Digital Millenium Copyright Act (DMCA) was signed into law in 1998 to protect the intellectual property rights of content creators while also providing a safe harbor for internet service providers and websites who act in good faith to remove infringing content once they become aware of the matter. The Lanham Act was enacted in 1946 and has been amended several times. In 1999, the Anticybersquatting Consumer Protection Act amended the Lanham Act to address domain name trademark issues.

Does the DMCA or the Lanham Act still work in the Social Media Age? On June 16, 2010, I blogged that intellectual property protection is useless in the social media age. Since that post, very little has been done to better protect content creators from the illegal use of their intellectual property without their permission or compensation. Congress has not been able to draft compromise intellectual property legislation that better protects digital intellectual property rights while also creating a fair and equitable system to protect innocent internet service providers and websites from liability.

According to a recent San Francisco Chronicle article, Facebook appears to be a haven for the sale of counterfeit goods. Ironically, the article mentions that Facebook has been notified about this issue but it appears they will not do anything about it unless the trademark holder personally contacts them. Does this response demonstrate that Facebook has a huge problem with ads for counterfeit goods on its platform? Under Viacom v. YouTube's latest appellate court ruling, will Facebook soon have significant legal liability issues to address?

The bottom line is that that it takes time for the law to catch up with technology.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Intellectual Property Law is Useless in the Social Media Age

The major tools that companies have to protect their intellectual property rights in the Social Media Age were created before and during the Internet Age of the late 1990's. Under current law, copyright and trademark holders have several different remedies available to go after cyber-squatters and those who utilize copyrighted material and trademarks without permission. Some of the tools available include the Lanham Act and the Anti-Cyber Squatting Protection Act, The Digital Millenium Copyright Act, and ICANN's Uniform Domain Dispute Resolution Policy.

Facebook, MySpace and Twitter, (scroll down to the Copyright Policy), and YouTube all have policies in place for companies to report theft of their intellectual property. Even though some of these companies, (Ex: Facebook) appear to have a policy in place that addresses the problem when a company's trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark.

Screen/user name intellectual property infringement is a major problem. For example, on Facebook there is a popular page that at first glance appears to be Nike Shoes. Upon closer examination, even though this page has over 2.2 million "likes" it does not appear to be a valid Nike Shoes Facebook page. In addition, if you type in www.facebook.com/nikeshoes you are directed to an entirely different Facebook page that appears to be another user. Visiting MySpace's "Nike Shoes Page" demonstrates the same problem. If you type in www.myspace.com/nikeshoes you will notice that you are directed to the page of a Nike shoe collector/seller.

Through a quick check of the United States Patent Trademark TESS search system it appears that "Nike Shoes" is not trademarked. However, "Nike" was trademarked in 1972 for "ATHLETIC SHOES WITH SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES" and "ATHLETIC SHOES WITHOUT SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES". Therefore, Nike has a very strong claim that the term "Nike Shoes" infringes on its trademark.

The bottom line is that intellectual property law needs to catch up with the Social Media Age and/or social media companies need to be willing to provide the contact information of those who are charged with determining if a screen/user name infringes on a trademark or if posted material violates a copyright. Providing forms for intellectual property rights holders to complete when an alleged violation occurs is a start but does not adequately address the situation. More accountability is needed.

To learn how to combat the theft of your company's intellectual property via social media you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.