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In 1998, then-president Bill Clinton signed into law a controversial act that protects American business interests from the public. At that time, college kids were downloading music from an app called Napster that allowed them to share any file on their computer with others. Prior to this, sharing music in this manner was quite difficult. Not only was the size of the files too large for the small hard drives, but the speeds to share the files were also fairly slow. Napster allowed an individual to leave the app running for hours while a file was downloaded. It also helped that these kids were using T1 connections provided by their colleges. 

In response to the brazen theft that was occurring, Congress passed a law protecting media companies from copyright theft. This made it possible to target individuals who were downloading music from Napster and charge them with crimes. Today, those who pirate their favorite television shows from Torrent sites may be familiar with DMCA notices. These notices are given to those who illegally pirate files from the internet. While these notices rarely result in criminal charges, an individual can have their account suspended if they are caught multiple times. Targeting the torrent sites themselves has proven far trickier, though.

Who is Liable for Copyright Infringement?

There are two main targets for copyright infringement. Those are websites and pirates. While those who seek out copyrighted material they know they should not possess are guilty of criminal activity, stopping piracy at the source would produce better results for media companies that rely on their digital assets for income. However, the DMCA protects websites from liability through “safe harbor” exclusions. These exclusions protect web hosts and internet service providers from copyright infringement so long as they implement takedown notices and other measures.

Why are ISPs and Web Hosts Exempted From Copyright Infringement?

To understand the answer to this question, you have to understand the technical aspects of internet hosting. Web hosts do stuff that makes the user’s experience faster and better. They would have been prevented from doing these things or potentially liable to media companies had the exclusion not been passed. Most of the processes are automatic. 

As an example, take Google. Google does not give users copyrighted material. However, its search engine cache allows users to find copyrighted material. Is Google liable for copyright infringement? The answer is no because the information is contained in a “safe harbor” in an information cache. While a company that owns the copyright may file a takedown notice, there may also be a lawsuit over whether or not the exclusion applies.

In most cases, ISPs need only comply with requests from an aggrieved party to satisfy the requirements under the law and maintain their exclusion. However, copyright legislation only applies within the United States and servers that are located here. 

 

Need to File a DMCA Takedown Notice?

Carbon Law Group helps Los Angeles businesses protect their intellectual property. Call today to schedule an appointment, and we can discuss your next moves immediately. 

Today, media companies are fighting battles on multiple fronts to protect their intellectual properties. However, major sites like YouTube are almost certain to have the most takedown notices filed against them each year. Something like the Pirate Bay, on the other hand, seldom has takedown notices filed against it, and if it does, it does not respond to them. If it did respond to them, there would be another torrent file up on the site in a few minutes after the original was taken down.

It is fair to ask: How do media companies protect their IP from pirates? Well, the torrent itself has the IP addresses of everyone downloading the copyrighted material at the time. If you are unlucky enough to be downloading the copyrighted material when the torrent is hacked, the information will be sent to your internet service provider and you will be given a nastygram instructing you not to violate the law. 

With sites like Pirate Bay, however, you are dealing with an internationally-hosted site in a country that does not have super-strong copyright legislation. With YouTube, you are dealing with an American company that is hosted in the United States and can be subjected to legal pressure.

Filing a DMCA Notice With YouTube

This happens sometimes. Let’s say I’m in a band. My band produces a hit song, and now, everyone wants in. Eventually, someone on the internet makes a karaoke version of the song by stripping the vocals and putting up the lyrics. I did not authorize this karaoke version, and I am not getting a cut of the proceeds. I file a notice a DMCA notice with YouTube to remove the video immediately. In this case, I have my lawyer file a notice with YouTube’s registered agent. YouTube accepts the allegations at face value and then removes the video from its platform. It files notice with the individual who put the video up that the video has been taken down. The individual has a right to contest the takedown. 

If an individual who has uploaded copyrighted material to YouTube claims that the material is theirs, then YouTube will review the counter-notice it received and either ask for more information or deem the counter-notice complete and valid, and forward the information to the person who filed the complaint. At that point, I have 14 days to file a lawsuit against the individual who has uploaded copyrighted material to YouTube. If I do not file this lawsuit within 14 days, the allegedly-copyrighted material will go back up on YouTube. 

Can I File a DMCA Notice Myself?

Yes. Creating a takedown notice does not require a law degree. A takedown notice is composed of the following information:

  • Name, address, and electronic signature of the complainant
  • The infringing materials and their URL on the offending web host
  • A statement by the copyright owner that there is a good-faith belief that the material was used in violation of the DMCA
  • An affirmation that the statements made are accurate under the penalty of perjury and that the complaining party (usually a lawyer) is authorized to act on behalf of the copyright owner

Essentially, that is all the information you need to provide to a web host to get copyrighted material taken down. However, if the user fights the action, then you will need an attorney to file suit on your behalf.

Contact a Los Angeles Copyright Attorney Today

Carbon Law Group helps digital content creators protect their intellectual properties from illegal use. To learn more, call us today, and we can begin discussing your options immediately. 

 

What are NFTs again? 

Non-fungible tokens, or NFTs, are a form of digital collectible. While they can be copied and reproduced, the original is secured on a blockchain just like Bitcoin. The first NFTs were digital trading cards that could be traded and collected, even sold online. Today, you can make NFTs out of just about anything, including different types of original artworks. But if anyone can copy them, how do you enforce the copyright?

Recent Copyright Lawsuits Involving NFTs

In a recent lawsuit filed by the creator of Bored Ape Yacht Club NFTs, a “satirist” is accused of copyright infringement after creating NFTs that look substantially like Yuga Lab’s Bored Ape NFTs. These, known as Ryder Ripps NFTs, are at the center of a copyright infringement lawsuit. Yuga Labs, the progenitor of the original Bored Ape NFTs believes that Ryder Ripps is sowing the seed of confusion by mixing his satirical spin-offs with the highly-profitable NFTs created by Yuga Labs.

Yuga Labs is demanding Ryder Ripps cease production of the offending NFTs and compensate the company for financial losses related to the confusion surrounding Bored Ape NFTs. If another company is producing a similar copyrighted product making it difficult for collectors to tell the difference between the original Bored Ape and the spin-off, that could dilute the value of their collectible.

Specifically, What is Ryder Ripps Being Accused of?

They are being accused of ripping off Bored Ape’s original work, connecting it to a different blockchain token, and then selling it at a fraction of the value of the original collectible. They contend that the only point of the effort is to cause financial harm to Yuga Labs. In other words, the satirist is accused of profiting on the popularity of the Bored Ape NFT and defrauding consumers at both their expense and the expense of Yuga Labs. Ryder Ripps is also accused of setting up a copycat Twitter account to further sow confusion in consumers. The fraud element is among the most important allegations made against Ripps who contends that all purchasers are required to sign a disclaimer acknowledging that the product is a satire against the Yuga Labs variation and not meant to be passed off as an original. 

Where do we stand in NFT-related copyright issues? 

Some popular NFT projects have been released with no explicitly written copyright terms (not the Board Apes – its terms and conditions say “You Own the NFT. Each Bored Ape is an NFT on the Ethereum blockchain. When you purchase an NFT, you own the underlying Bored Ape, the Art, completely.”) This creates great legal risk for all concerned. These NFT sales merely convey a license to use the digital copy of the creative work, and the copyright holder retains their copyright ownership. This means that ownership of the virtual art piece is not guaranteed when one buys an NFT. The digital governing contract covering the sale of NFTs must expressly provide for an assignment of copyright in a signed writing for the buyer to actually own the copyright in the art. Without such a signed written instrument, someone could approach an NFT series’ creator and buy the underlying copyright to the artwork, then sue the NFT’s purchasers for putting the images in their profile pictures — because there’s no license explicitly granting them the right to do so.

Using intellectual property without the rights owner’s permission is called infringement, and an NFT creator can be sued for it. Some NFTs create copyright trouble by using artworks stolen from artists, or famous works that the NFT creators have no connection with and no license to use from. Copying these works as part of the NFT marketing (e.g. for OpenSea listings) can be copyright infringement. An NFT creator could be engaged in false advertising by implying that NFT owners will receive rights alongside these stolen works. And because copyright infringement is a “strict liability” claim, NFT owners who make copies of stolen art could also be liable for infringement, even if they were misled by the original NFT creator/seller into thinking that they own the rights to the underlying artwork.

While there is certainly a lot of confusion over what is and is not permissible in our Web3 future of the age of digital collectibles, profiting off another company’s intellectual property remains actionable under the law. 

Talk to a Los Angeles Intellectual Property Attorney

Need to pursue someone for profiting off your intellectual property? Call Carbon Law Group today to schedule a free consultation and learn more about how we can help.

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Los Angeles, CA 90017

Carbon Law Group, P.C.

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Carbon Law Group, P.C.

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Santa Monica, CA 90404

Carbon Law Group, P.C.

4195 Chino Hills Parkway #1135

Chino Hills CA 91709

(323) 543-4453

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