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Inadvertently Perpetuating Copyright/DMCA Confusion

kat · 1 · 9175

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Offline kat

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Saw this posted to Instagram and though it worth covering here as the reply is too long for a comment. Unfortunately it seems the author has a few wires crossed and may be inadvertently causing more confusion than clarity.

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Friendly FYI here... you've got a few wires crossed with this post (long comment ahead);

Hey guys,

I wanted to share a little bit with you today on what a DMCA is versus a trademark violation.

Everyone should know their rights on both sides.

For DMCA, nobody has the authority to act on the owners behalf. If you have got a DMCA complaint you have the right to ask for verification from @imvu that they are allowed to act on the owners behalf. Must include an electronic signature or regular one.

- DMCA can be acted upon by 3rd parties (Designated Agents) so long as they are granted that authority by the rights holder (unlikely for IMVU/SL).

- if you receive a 'take-down' IMVU is obligated to notify you of the Notification ... it's important to note that they are not acting on the 'owners' behalf but fulfilling their obligation to DMCA.

The DMCA requires service providers to tell you IMMEDIATELY when they remove any of your content due to a takedown notice. Here is the kicker though! Pay attention... You have the right to submit a counter notice demanding the materials be put back up. I suggest you do this through a certified letter so you have proof if litigation is necessary. Also, there is NO TIMELINE ON WHEN YOU CAN SEND A COUNTER NOTICE. If you were disabled 2 years ago, this still applies to you! Also, remember if you fail to respond to a DMCA, even on IMVU, you are subject to a copyright lawsuit in real life only by the owner NOT IMVU.

- the Counter Notice is not a demand to reinstate any removed items, it's a Counter Notice to the initial infringement notice (take down) ... the issuer of that has a limited time to refute your Counter, Claim after which any removed content will be 'lawfully' reinstated.

- depending on where you are (jurisdiction/geo-location), email notification is considered 'proper notice'.

- if you have received a Take-Down, it's prudent to deal with it ASAP to prevent the delay being used as an argument against you.

- similarly if you 'fail' to respond that will be used against you.

If you have won a DMCA that just means they took down the content. But you as a creator are now entitled to compensation. You can sue that other creator in real life and IMVU because BOTH parties have profited off your work. It caused you a financial loss.

- you don't 'win' a DMCA claim unless that's the outcome of a court case. If a counter claim is not pursued through the courts that isn't a 'win' either, it's the process working as intended to mitigate frivolous suits.

- at no point are you "entitled to compensation" unless that's adjudicated by a Court, having content reinstated is not 'winning' in that sense unless you take someone to court to seek compensation (you are entitled to seek compensation) for losses (which have to be proved).

- in addition, so long as IMVU acts as defined in the legislation they will have a strong defence against being party to a suit, so while it *might* be possible to include them, it'd be difficult and costly to prove fault.

Now, if you use a texture from a mesh and slightly changed it. This is not copyrighted, it has to be an original work. It doesn't even matter if their name's on it. Names are not copyrighted, they have to be trademarked.

You can use brand names! You just have to do it the RIGHT way. Nike, Addias, anything you want. Just make sure you do it in a way where you can prove it's comparative advertising, news, a parody, and/or critique.

For example don't just use the word Nike. Use Nike with a reverse slogan.
Nike - Don't Do It. The DMCA comes from their imaged LOGO <--- not that name! The swoosh is copyrighted and a DMCA can be filed.

Also remember, ICON's are copyrighted and YOU CAN DMCA for it.

- and finally, and perhaps most importantly, "comparative advertising" etc. are defences not excuses, YOU (the creator), is not the party to determine if something is an infringement or not, the Rights owner is (and Courts).

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We need to be *very careful* how this topic is discussed else it gives people the wrong impression about what they can and cannot do and/or expect from DMCA and IMVU.

For more on Copyright/DMCA
See the following links to read more about this issue;
- I got a DMCA 'take-down' Notice, what do I do?
- [IMVU] filing a DMCA Notice or Counter Notice
- Are DMCA Protection websites scams?
- Fan Art and Copyright Infringement
- Pewdiepie, pejoratives and threats of false DMCA