Social Media and IP: Part IV – Taking Down Infringing Content

Taking down IP infringing content on Social Media platforms is today a well-established process. All Social Media platforms have DMCA take down mechanisms in place. In line with the law, they have specific email ids and forms to enable IP owners raise disputes and take down content. Terms and Conditions of Facebook, YouTube and Twitter have separate provisions dedicated to IP infringement and take down.
 

Facebook

“5. Protecting Other People’s Rights

 
We respect other people’s rights, and expect you to do the same.

1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
2. We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies.
3. We provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page.
4. If we remove your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal.
5. If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate. …”

Clause 5 of the Statement of Rights and Responsibilities of Facebook lays down the platform’s policy with respect to copyright infringement. As per the provision, Facebook can remove any content on its own initiative if it learns that the content is infringing IP of a third party. It also provides for a takedown page, on which IP infringements can be reported. On receiving a complaint, Facebook will review the report and remove the content if it is infringing.
If the content is removed by Facebook, a person can appeal. During the appeal, if the person proves that the content was removed by mistake, it can be re-instated. Accounts of repeat infringers will be disabled by Facebook. Trade Mark and other right’s infringement can also be reported on Facebook, and taken down.
 

Twitter

“9. Copyright Policy

 
Twitter respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information:

• a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
• identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Twitter will also terminate a user’s account if the user is determined to be a repeat infringer. …”
Twitter’s Terms of Service provide that any copyright infringing content will be taken down. Like Facebook, Twitter also has a form to receive and process infringement complaints. For processing a complaint and taking down content, a complainant must prove that he/she owns the content and the content on Twitter is infringing. Accounts of repeat infringers will be terminated. Twitter has separate policies for trademark and character infringements.
 

YouTube

“6. Copyright policy

 
6.1 YouTube operates a clear copyright policy in relation to any Content that is alleged to infringe the copyright            of a third party. Details of that policy can be found here: http://www.youtube.co.uk/t/copyright_notice
6.2 As part of YouTube’s copyright policy, YouTube will terminate user access to the /Service if a user has been           determined to be a repeat infringer. A repeat infringer is a user who has been notified of infringing activity more         than twice.”
Like Facebook and Twitter, YouTube also has a DMCA take down policy for removing copyright infringing content. More than two notifications of infringement will make a user, a repeat infringer on YouTube. Repeat infringement can result in termination of access. YouTube also has a complaint form for reporting trademark infringement. A channel that infringes a trademark can be blocked or terminated.

Dealing with Infringement on Social Media

Though Facebook, Twitter, YouTube and other Social Media platforms provide email addresses and forms for take down, the response to complaints is painfully slow. Regular follow up and several submissions of complaints are required to actually take down infringing content. In one instance, a person created accounts and pages in the name of our client’s trademark, PEPS, and effectively blocked our client from using them. From the time we started our complaint process, it took us approximately two months to take down all infringing pages and accounts.
While taking down the content, Social Media platforms must consider whether the use falls within the scope of fair use. Content need not be taken down if the use is fair. In a recent case, YouTube did not take down a video even after receiving a complaint from Universal Music stating that the video includes its copyrighted song, “Lets Go Crazy.” A child was shown dancing in the song, and YouTube considered it fair use.
Taking down infringing content from Social Media platforms is an arduous, and not so straightforward process, and must be handled carefully. It is advisable to contact the person, who uploaded the content or IP directly before taking up a complaint, dispute or litigation. In the author’s experience, seventy out of hundred times IP infringements can be resolved with a simple letter or phone call.
 
Authored by Dr. Kalyan Kankanala
Contributed by Social Media Law Team of BananaIP