Today Shapeways is proud to join with our colleagues at Etsy, Foursquare, Kickstarter, and Meetup in urging the White House to begin exploring the possibility of an online safe harbor for trademarks. We believe that a statutory safe harbor for trademark use online would increase the free flow of information online and empower individuals to push back against abusive uses of trademark. If you read these last two sentences as “words words words” but are still curious what those words mean, let me take a moment to explain what we are talking about.
The United States has what is known as a safe harbor for websites that allow other people to post content to them (that includes all of the sites mentioned above, and a huge number of sites in the world). As a general rule, users – not websites – are liable when a user posts things that infringe on the copyright of others. Without this protection websites would have to individually screen every single post, model, photo, and comment for a copyright conflict before posting them. In practice, that would mean that there would be a lot fewer sites that allow others to post content online.
One of the conditions of this safe harbor protection is that when a website operator is informed by a rightsholder that something uploaded to the site is infringing, that website operator takes down the allegedly infringing content. Because this process is governed by a law called the Digital Millennium Copyright Act (shortened as the DMCA), these kinds of takedown requests are sometimes known as “DMCA takedowns.” (This epic tale of Eulice and Abbas explains how we handle these types of requests at Shapeways.)
One important feature of this safe harbor system is that, in addition to giving rightsholders the ability to request content be taken down from a website, it also gives the original uploader the ability to request that the content go back up. This ability to push back against takedown requests provides a critical check against abuse of the takedown process.
The safe harbors are critical to the ability of users to push back against abusive takedown requests. Since the website is protected from liability, a user does not need to convince the website that it is worth it for the website to go to court in order to challenge a takedown. Instead, the website can get out of a user’s way and let the user challenge the takedown request if the user decides that it is worth challenging.
Similar safe harbor systems exist for things like accusations of defamation. By pulling the website out of the equation, it is up to users to decide if a conflict is worth pursuing. Even if a website doesn’t want to risk its entire business on a dispute, the person who stands accused is empowered to fight for rights she feels are important. On balance, this makes the internet a richer place.
Currently, these types of formal statutory safe harbor protections do not exist for trademark disputes. The result is that there are many fewer checks on trademark owners who might want to exceed their rights and suppress a user. In practice, a user who wants to challenge an accusation of trademark infringement and have their content re-posted must convince the website that re-posting the content is worth going to court over. Not surprisingly, that can be a hard argument to make.
The filing today is designed to highlight this problem for policymakers. It is the first step in what will inevitably be a long process towards finding a solution that works for trademark holders and users. We’ll keep you updated as it evolves. In the meantime, if you have any questions or comments we’d love to see them below.