Should IPR Laws be Used for Reputation Management?
The Digital Millennium Copyright Act (DMCA) created opportunities and challenges for intellectual property owners. While it gave trademark and content owners access to a consistent process for challenging unauthorized use of protected content, the DMCA didn’t solve every issue.
In the area of reputation management, a company’s logos or content may be used in hostile content. The “fair use” privileges extended by IPR law are deemed free speech. There is also economic benefit to allowing others to use your trademarks and quote your content in general.
In recent years a growing number of people – especially among YouTube video bloggers – have complained that DMCA takedown notices have been used to harm them. False takedown requests may be quickly honored by platforms, thus removing legitimate content from the Web.
While such campaigns appear to be few in number, the impact of these campaigns has been substantial for some people. Companies and individuals seeking reputation management services may be approached by some bad actors in the field who wield false DMCA takedown requests as a weapon.
The time required to find and request takedown for widespread violations of protected materials may be substantial. Ecommerce companies that participate in affiliate programs should be mindful of potential abuses of their logos by affiliate Websites. Companies that publish digital materials may also find those ebooks and white papers replicated without authorization and used for nefarious purposes.
The need to monitor the use of protected properties is legitimate and the costs can be substantial. For a small to mid-size company it may seem appealing to hand off these tasks to another firm as a cost-saving measure.
3rd-Party IPR Violation Notices May Cause Problems
Many Internet Service Providers – including large companies like AT&T and Comcast – may hire 3rd-party companies to analyze their users’ download activity. These contractors may issue cease-and-desist notices to the ISPs’ customers, alleging they have downloaded illegal content.
There are sporadic reports of false or erroneous notices among customers of various services, but they have little recourse for defying these notices.
While the majority of these incident reports are most likely true, the false-positive rates may contribute to poorer customer impressions of the ISPs they use. In markets where there are few choices the customers have little recourse but as more broadband ISPs enter less competitive markets consumers will be in better positions to change services.
If your clients are not Internet service providers with captive audiences, they take a greater risk of alienating loyal customers by handing off IPR monitoring and enforcement to other companies. For the firms offering these services, reputation is vital – it’s not just their own business that is on the line but the business of their clients.
It’s important that intellectual property rights management be handled flexibly. Companies should acknowledge mistakes and incorporate processes into their systems to rectify them.
When Hostile Parties Take Over Protected Content
It’s natural for people to use protected content to attract attention in social media, video, and web searches. They want to share their complaints with other people interested in the trademark and copyrighted material owners.
Given that fair use allows people to criticize and protest against IPR owners using their own content, the question for owners must always be framed as how does this impact consumer perception?
If unauthorized use of a trademark or copyrighted property can cause consumer confusion then your clients have the law on their side. If they are using 3rd-party IPR monitoring companies they should verify that these companies understand the law and apply it correctly.
The worst possible outcome from a false or erroneous DMCA takedown is that it leads to public controversy. The majority of the public are generally sympathetic to people who casually use protected properties. The public relations battle for intellectual property rights has been lost and most people believe they should be free to use anything the way they wish.
Where hostile content is egregious and defamatory, reputation defenders should appeal to platforms’ terms of service enforcement teams, documenting every applicable violation. A mere DMCA takedown request may fail because the interpretation of fair use is subjective. Even the courts cannot seem to agree on a consistent standard for it.
When Content Is Embedded without Proper Authorization
Modern Web technology makes embeddings a more common use of protected materials. A WordPress blog article may be embedded in another WordPress blog article by just inserting the URL or address of the article on its own line.
If that link pointed to a real blog post you would see a small box containing a featured image and a snippet of text.
Video embeddings from platforms like Vimeo and YouTube are easy to make as well. By embedding your clients’ content in their sites, hostile people can use their logos, trademarks, and copyright material with impunity while maligning those companies.
It’s incumbent upon Web content owners to monitor who is embedding that content. Mere linking is usually protected by law, although this varies by jurisdiction. Some European countries grant rights to Website owners against linking, but enforcement usually requires a lawsuit.
It’s much easier to defend embedded content and enforce embedding rules because the referrals can be blocked by Web server software.
Some people, upon discovering unauthorized use of their images, have resorted to clever substitutions accusing the hotlinkers of digital theft. While this rarely ends the hotlinking it does create an embarrassing image for the hotlinker.
If a client cannot compel the removal or editing of a hostile article that uses embedded content, replacing the embedded content with a disarming or rebutting notice is one less expensive option.
What If No One Is Policing the Copyright Police?
The scale of copyright infringement is so massive that most companies respond to DMCA takedown requests with as little effort as possible. The DMCA puts the burden of proof on the IPR owner and the burden of defense on the person alleged to have misused material.
The sheer volume of the DMCA landscape may make it feel safe to leverage the law for the benefit of a reputation client. To do so is illegal at worst, and ethically questionable at best. It’s a business decision that should be weighed against the risks of being exposed.
When an embattled company or person takes aggressive action to silence protesters and critics, the response may be worse than the original problem.
The argument based on it’s easy to do this and no one is likely to report you neglects the angry response to false takedown requests.
Even a legitimate takedown request may spur retaliation, thus deepening the problem.
These risks are not excuses for doing nothing but the people who issue the takedown requests should have clear, ironclad proof on their sides that stands up in a court of law. After all, your clients could be sued for filing false DMCA requests.
However small the risk may seem, it’s best to consider it before proceeding with a risky strategy.
Calling Attention to Unauthorized Use May Be Better Defensive Strategy
In some situations, hostile actions can be defused or undermined by raising the stakes. If the unauthorized use is defamatory and misleading then a public denouncement may undermine public sympathy for the hostile party.
To retain intellectual property rights owners must be able to prove consistent enforcement, and sometimes that calls for raising public awareness of misuse. When the misuse affects an owner’s reputation the reputational aspect of the situation should be addressed.
If the misuse results in negative attention for the other party they may be discouraged from making further attempts to disparage a reputation. At the very least they become less credible every time they are outed.
When an IPR owner builds public sympathy and support for its position attacks using protected materials become less effective. Even if you cannot remove the hostile content completely weakening its effect on reputation is still worthwhile.
There are circumstances where enforcing intellectual property rights improves reputation. Whether enforcement actions are the best recourse for negative reviews or hostile blog posts isn’t easy to answer.
The greatest risk for any reputation defense is that it will be unmasked and used for further attacks. Sometimes that is a storm that must be weathered, especially if valuable trademarks must be protected.
Before advising clients on how to proceed, ensure they understand the potential drawbacks. To avoid creating paralysis in decision-making, reduce the questions to what are your priorities and what are you willing to live with?
At worst an enforcement action could result in a lawsuit or negative media attention. At best it achieves the desired result. The weight of the risk is determined by the brazenness or egregiousness of the enforcement. If all the client needs is for a false and misleading claim to be removed, the best strategy may be more low-key than IPR enforcement. When the decision is made to pursue enforcement it should be handled professionally and with as much clear-cut evidence and legal support as possible.