Social Media Brings New Challenges on Intellectual Property Law

The digital age has shortened the distance and time for communication. The rise of various social media provides platforms to both individuals and business for communicating and sharing information.[1] The core feature of social media is user-generated content, allowing “users create online communities to share information, ideas, personal messages, and other content (such as videos).”[2] The massive and instant dissemination of user-generated content online is an effective and powerful way to connect and advertise. However, every rose has its thorns. The everyday use of social media presents constant challenges to Intellectual Property Law.[3]

Use of brand names, in social media usernames or in hashtags, might bring you into legal disputes. [4] For example, a 20-year-old named Chanel Bonin started the account “@Chanel” on Instagram in 2011, three years before Chanel started its Instagram account “@chanelofficial.”[5] Her account was temporarily disabled and she changed her username when she returned to Instagram in 2016.[6] On March 30^th, 2017, Facebook updated a new rules to limit who can post sponsored or “branded” content on its platform to help eliminate infringement.[7]

Copyright law has also been challenged by social media. One of the ways a copyright holder can bring down an infringing content is to send a takedown notice to the social media under the Digital Millennium Copyright Act (DMCA).[8] But, the DMCA requires a copyright owner to consider existence of fair use before sending takedown notification.[9] That means despite the voluminous online content in digital age, copyright holders need to comply with the appropriate procedures in protecting their copyrights.[10]

The DMCA also offers a safe harbor to internet content providers such as YouTube to avoid infringement liability for storing users’ content if content is removed after receiving the notification.[11] Social media platforms have been taking action trying to eliminate infringement by having moderators to screen user-generated submissions.[12] However, 9^th Circuit Court of Appeal narrowed the application of the safe harbor provision.[13] The decision holds media platforms using moderators liable for infringement.[14] Therefore, this way to solve IP infringement on social media is not as easy to achieve as it appears. Traditional remedies are still available such as commencing a lawsuit or sending a cease-and-desist letter.

For more information and analysis of advantages and disadvantages of those methods to remedy IP infringement on social media, check out Daniel Doft’s article Facebook, Twitter, and the Wild West of IP Enforcement on Social Media: Weighing the Merits of a Uniform Dispute Resolution Policy in the 4th issue of our 49th volume at http://repository.jmls.edu/cgi/viewcontent.cgi?article=2703&context=lawreview

[1] Stuart Green & Scott R. Sloan, How Trade Mark Registration Can Help Protect Your Brand on Social Media, Mondaq, (Nov. 25, 2011). http://www.mondaq.com/australia/x/154910/Trademark/How+trade+mark+registration+can+help+protect+your+brand+on+social+media&email_access=on

[2] “social media”, Merriam-Webster Online Dictionary 2017, http://www.merriam-webster.com/dictionary/social%20media (last visited June 17, 2017).

[3] Vicky Butterworth & Matthew Sammon, Social Media—The Challenges of an Effective Trade Mark Protection and Enforcement Strategy, Mondaq, (Mar 16, 2016). http://www.mondaq.com/uk/x/474648/Trademark/Social+media+challenges

[4] Id.

[5] Anurita S. Varma, Buy It, Wear it, Love it . . . Just Don’t Copy It: Chanel’s Aggressive Actions To Protect Its Trademarks, Mondaq, (Feb 10, 2017). http://www.mondaq.com/unitedstates/x/567540/Trademark/Buy+It+Wear+It+Love+It+Just+Dont+Copy+It+Chanels+Aggressive+Actions+To+Protect+Its+Trademarks

[6] Id.

[7] Hannah Taylor, Facebook Updates Rules Governing Branded Content, Mondaq, (May 23, 2017). http://www.mondaq.com/unitedstates/x/596724/Social+Media/Facebook+Updates+Rules+Governing+Branded+Content

[8] Lenz v. Universal Music Corp., 815 F.3d 1145, 1148 (9th Cir. 2016)

[9] Id.

[10] Id.; See 17 U.S.C. § 512 (c)(3)(A) (setting forth the elements that such takedown notification must contain, which are considered as takedown procedures).

[11] Lenz, 815 F.3d at 1151; 17 U.S.C. § 512(c).

[12] Mavrix Photographs, LLC v. LiveJournal, Inc., 853 F.3d 1020 (9th Cir. 2017)

[13] Bradley Dlatt & Jason Gordon, Digital Copyright Ruling Creates New Vulnerabilities for Moderated Online Platforms, Mondaq, (May 13, 2017).

[14] Id.