UK law on takedown requests

[khalid]

If a hosting company is allowing a customer to infringe on a trademark are they liable if they fail to execute a takedown request?

Can anyone direct me to the law on it if there is such a thing?

 

[accelerator]

Haven't got time to find exact info, but this web page might be a start:

http://www.out-law.com/page-343

Rgds

 

[Adam H]

Pretty sure there is no DMCA take down law for the UK, its an Americanised practice which many Hosts including UK hosts honour because its less hassle.

There is very different views on it though :

http://www.quora.com/Is-there-a-UK-...nd-desist-for-websites-hosting-copied-content

Ive seen cases where the UK host has taken a website down until the owner fixed the DMCA and then the owner of the website sued the Host because it shouldnt have been done.

Im not totally sure myself though and im pretty sure there is a similar practice of which you can carry out in the UK but its not as straight forward as simply messaging their host.

You'll find most website owners wont act until they receive some kind of legal paperwork asking them to take it down for legal reasons unless they dont care about the content being removed, Ive received loads of "requests" over the years being a forum owner with people wanting to remove posts they've made for no apparent reason other than they think they own the copyright to that content, which of course i refused to do unless their was a legal notice to do so..........not just a message from my server company.

 

[namealot]

Depends on what there doing? how there doing it? and what the infringement is ?
helps with the different types
https://www.gov.uk/intellectual-property-crime-and-infringement

and

http://www.legislation.gov.uk/ukpga/1988/48/contents
It may sound strange but as an example I create a copy of your logo using photoshop etc stick it on my web page would be different rules governing that than downloading your logo from your site and inserting that on my page?

http://www.legislation.gov.uk/ukpga/1994/26/contents

With Regards fines, prison etc
https://www.gov.uk/government/publi...perty-offences/intellectual-property-offences
(It changed again 1st Oct )

It is unusual for UK host not to take it down, they usually can't be arsed with the grief for what there making hosting and most (not sure any UK) have dedicated legal teams I do wonder if the C and D was maybe a complete pigs ear or sent the wrong way to the wrong department ?

 

[namealot]

Pretty sure there is no DMCA take down law for the UK, its an Americanised practice which many Hosts including UK hosts honour because its less hassle.

There is very different views on it though :

http://www.quora.com/Is-there-a-UK-...nd-desist-for-websites-hosting-copied-content

Ive seen cases where the UK host has taken a website down until the owner fixed the DMCA and then the owner of the website sued the Host because it shouldnt have been done.

Im not totally sure myself though and im pretty sure there is a similar practice of which you can carry out in the UK but its not as straight forward as simply messaging their host.

You'll find most website owners wont act until they receive some kind of legal paperwork asking them to take it down for legal reasons unless they dont care about the content being removed, Ive received loads of "requests" over the years being a forum owner with people wanting to remove posts they've made for no apparent reason other than they think they own the copyright to that content, which of course i refused to do unless their was a legal notice to do so..........not just a message from my server company.

Site owners might ignore them host don't tend too ain't worth battling it out or getting drawn in to legal crap for what most are making for hosting

 

[Retired_Member38]

Ive seen cases where the UK host has taken a website down until the owner fixed the DMCA and then the owner of the website sued the Host because it shouldnt have been done.

I'd be interested in reading any links about that. As pretty much every hosting account I have seems to have T&C's which would prevent you suing the host in that situation?

 

[Adam H]

I'd be interested in reading any links about that. As pretty much every hosting account I have seems to have T&C's which would prevent you suing the host in that situation?

Thats pretty much what i would have thought as well, every host ive seen has always had some pretty comprehensive Terms of service to cover pretty much everything. Ill see if i can find any stories on the case im thinking of.

 

[Adam H]

Not related to a host being sued but interesting case to read where the take down notice escalated into something they might not have expected lol :

http://jolt.law.harvard.edu/digest/copyright/wordpress-sues-dmca-takedown-abusers

 

[Adam H]

I'd be interested in reading any links about that. As pretty much every hosting account I have seems to have T&C's which would prevent you suing the host in that situation?

I cant find any reference to the case in question, most likely because the results a saturated by Counter Sued cases but not the actual host being Sued.

I would have thought it would have been pretty extreme circumstances though to either not have the correct T&C's in place or maybe something out side of that like support staff saying something they shouldnt have which admits liability in some way ( just guessing ).

Misrepresentation seems to be a hot topic though when DMCA's are concerned :

17 U.S.C. § 512(f) Misrepresentations. – Any person who knowingly materially misrepresents under this section —

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Alot of T&C's you see online are not bullet proof espcially with the small/medium sized company's , a good solicitor thats internet savvy will normally find something that can be leveraged if the claim has some kind of substance.

 

[namealot]

I'd be interested in reading any links about that. As pretty much every hosting account I have seems to have T&C's which would prevent you suing the host in that situation?

If they remove under guise of DMCA then there are routes that allow you to sue though its only if you respond to the take down and they then don't follow set procedure other wise they have immunity offered by safe harbour
http://www.copyright.gov/title17/92chap5.html#512
Responding to a DMCA
http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content
Pretty good database of cases Cand Ds Legal Threats etc
http://www.dmlp.org/database
http://www.dmlp.org/sites/citmedialaw.org/files/2004-09-30-Order Granting Summary Judgment.pdf

If you want the short version
“A” C an D’s host to remove material , You counter notification host, Host has not less than 10, nor more than 14, business days replace/unblock etc If host doesn’t you can sue them unless “A “files an action seeking a court order to restrain them from doing so…

But most hosts T and C's allow them to terminate account for whatever reason (some will when you send counter notification) You move new host starts again if the grieved party keeps C an D’s every new one you sue them if there groundless
http://www.dmlp.org/threats/crook-v-10-zen-monkeys#description

 

[khalid]

Thanks for all your replies.

The host seems to think that as the trademark infringement is on the domain and not the actual website content I should just DRS and it has nothing to do with them.

What I'm trying to do is find a piece of legislation / law that says they are liable for hosting a website that utilises a trademarked domain name. Anyone have such a thing?

 

[Adam H]

Thanks for all your replies.

The host seems to think that as the trademark infringement is on the domain and not the actual website content I should just DRS and it has nothing to do with them.

What I'm trying to do is find a piece of legislation / law that says they are liable for hosting a website that utilises a trademarked domain name. Anyone have such a thing?

I would think thats a little far fetched to try and pin that on a host, although im no legal expert so could be very wrong. Why not DRS ?

 

[khalid]

I would think thats a little far fetched to try and pin that on a host, although im no legal expert so could be very wrong. Why not DRS ?

I'm not pinning it on them, I'm asking them to remove it ask the domain pointing to the website infringes on a trademark.

I am DRSing at the same time.

 

[namealot]

I'm not pinning it on them, I'm asking them to remove it ask the domain pointing to the website infringes on a trademark.

I am DRSing at the same time.

Puzzled as to what you actually sent them and under what guise? Host isn’t responsible for the name just what they “host” content etc there 100% correct DRS or Practice Direction 25A Interim Injunctions through the courts

 

[Skinner]

The host is classed as a distributor (a legal definition), not a publisher. Has been since the 90s with the Rumorville Compuserve case. If you have dump trucks full of cash, you can challenge this, but you'd be better off DRS/UDRP'ing since domains fall squarely on the registry not the host.

God I'm old, since I actually remember being on AOL when this all came down

 

[khalid]

Puzzled as to what you actually sent them and under what guise? Host isn’t responsible for the name just what they “host” content etc there 100% correct DRS or Practice Direction 25A Interim Injunctions through the courts

I asked them to take down the site as it was breaching a trademark.

Not the domain and the website title infringe on our trademark and so surely the fact that content within the site I.e the title is a trademark infringement means the host has a responsibility of some sort?

 

[namealot]

I asked them to take down the site as it was breaching a trademark.

Not the domain and the website title infringe on our trademark and so surely the fact that content within the site I.e the title is a trademark infringement means the host has a responsibility of some sort?

TM does not confer monopoly rights to use of the word Your appear to believe it does? your not alone on that though “easy” would argue otherwise or should I say unless you have the money to pursue it through the courts ?

 

[namealot]

If the infringer is going to be an ongoing thorn then I’d suggest you look at IP insurance
There are a number of companies who offer specialist insurance
UK it’s commonly Before the Event (BTE) Legal Expenses Insurance (LEI). It’s intended to cover your legal costs should you bring IP proceedings in Court. It acts as a deterrent to potential infringers you’d probably be looking at mid xxx upwards in terms of cost to you? Or if American D&O or Professional Indemnity policies you might also get them here check your current insurers

Not recommending them but as an example UK
http://www.ip-insurance.com

 

[scooter]

Is the site selling goods and mentioning your mark? If it is and the goods they sell come under the same class as your mark then I think the hosts would have an obligation to take down once it is brought to their attention.

amazon and ebay do this. I have reported viloations to both on a few occasions and they have dropped the listings like a stone.



.

 

[namealot]

Is the site selling goods and mentioning your mark? If it is and the goods they sell come under the same class as your mark then I think the hosts would have an obligation to take down once it is brought to their attention.

amazon and ebay do this. I have reported viloations to both on a few occasions and they have dropped the listings like a stone.



.

No you can use others trademarks marks within advertising quite legitimately *especially so with descriptive?

You also have fair use (Yanks also love freedom of speech etc) this is often asserted on different grounds. The mark infringer using the mark to accurately describe and aspect of there product service etc another type “Tescos” can run an advertisement stating in a survey with 100 customers its goods are cheaper than “Aldi” as they are only using "Aldi" to identify competitor/ other entity in survey etc all hunky dorey/
Watch/read listen too adverts you’ll see many use competitors trademarks within there own advertising but its the way you do so that counts. amazon ebay etc may have policy that doesn't make it law though