A Look At Three Popular Sites That May Be In Trouble Under SOPA

from the collateral-damage dept

The EFF is taking a look at some websites that may face serious legal questions and liability should SOPA become law, specifically looking at Etsy, Flickr and Vimeo. These are three extremely popular and useful sites, which most people certainly believe are and should be perfectly legal. But under SOPA, they could be declared "dedicated to theft of US property," thanks to the broad definitions under the law. Take Etsy, for example:

Etsy is an online marketplace for handmade goods, where users can set up a storefront and create listings for things they’ve made.  There are over 800,000 active “shops” filled with these handmade goods — far too many for Etsy to monitor manually. Further, because of the eclectic nature of goods listed, it’s difficult to technically filter through the objects listed.

All that means that it’s not feasible for Etsy to proactively prevent listings that may be perceived to violate US copyright or trademark law.  That’s a problem, because  under SOPA, anybody who is a “holder of an intellectual property right harmed by the activities” of even a portion of the site, could serve Etsy’s payment processors with a notice that would require them to suspend Etsy’s service within 5 days. That means that a trademark violation in one of the storefronts could lead to payment suspension across the entire site. Unlike DMCA notices, which should be targeted to specific infringements, payment provider suspensions will likely target entire accounts.  And even if Etsy protests, the bill's vigilante provisions, which grant them immunity for choking off a site if they have a "reasonable" belief that a portion of a site enable infringement, give the payment processors a strong incentive to cut them off anyway.

The SOPA defenders in our comments will insist that Etsy should have picked a business model that doesn't rely on infringement. Kinda shows the disconnect here, doesn't it? Etsy's business model has nothing to do with infringement... and that's the problem with SOPA.

Flickr, of course, is one of the most popular photo hosting sites. But under SOPA, it's at risk:

Like Etsy, Flickr takes copyright issues seriously, and complies with DMCA safe harbor requirements by taking down photos when it gets a valid complaint, establishing a repeat infringer policy, etc.. But it doesn’t proactively monitor its user-generated content for copyright infringement. The language of SOPA is vague enough that an individual or corporate rightsholder could claim this lack of monitoring as “taking … deliberate actions to avoid confirming a high probability of the use of the … site to carry out acts that constitute a violation.” Flickr uses an ad network to place advertisements, and accepts payments for premium accounts. Both of those revenue streams could be suspended in a matter of days by a single complaint, and the process of reactivating them could be long and complex.

Vimeo is a really interesting one, since that company was sued by EMI for "inducing" infringement by having popularized "lipdub" videos. As EFF points out, that's more than enough to have them completely shut down under SOPA.

Of course, it's unlikely that rightsholders will go after any of these sites now under SOPA. They're all big enough -- and can afford lawyers. But there's a real fear that the next generation of such sites will get shut down... or, worse, won't even start up at all, due to the massive potential liability.

Filed Under: liability, risks, sopa
Companies: etsy, flickr, vimeo

Trademark Law (Once Again) Getting In The Way Of Fan Art

from the time-to-embrace-free-licenses dept

Rose M. Welch points us to this recent News.com story about how the popular homemade crafts website Etsy has had to balance trademark issues, since many people like to make "fan art" and often would like to sell it on the site. In some ways, it appears to be the same sort of thing that many content creators went through with people creating fan fiction or other forms of fan art online, complicated (of course) by the fact that Etsy is used to sell these goods. The overall article is about what you'd expect.

However, I did want to take issue with one part of the article, which repeats the (oft-repeated) claim that trademark holders have to block such uses of their work. That's not quite true, and it's annoying that it gets repeated as fact all the time. Rights holders do have to protect unauthorized uses of their work that are likely to confuse, but don't have to protect in cases where there wouldn't be any confusion at all. Separately, (and this is the part that most often gets ignored) if they come across an unauthorized use, they absolutely can issue a free license to make it authorized -- and thus, not risk "losing" the trademark. However, very few brands do this, in part because of the myth that they absolutely must stop all unauthorized uses. There are other options, and granting a license is a good one.

Filed Under: fan art, trademark
Companies: etsy