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#Intellectual Property

What are the counter-notice and put-back procedures?

The DMCA provides an opportunity for you to counter-notify, to tell

your ISP that the material in question is not infringing. Unless the

copyright claimant brings a lawsuit within 10 business days, the ISP

can put back the material and still remain immune from liability. A

form for creating your own counter-notification is online at http://www.chillingeffects.org/dmca/counter512.pdf

A proper counter-notice must contain the following information:

• The subscriber's name, address, phone number, and physical or electronic signature [512(g)(3)(A)]
• Identification of the material and its location before removal [512(g)(3)(B)]
• A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
• Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

Can I sue if my site is wrongly taken down?

Yes. Section 512(f) of the DMCA creates liability for "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." If you were harmed by an improper takedown, you may be able to sue the person or company who sent the takedown demand for DMCA misuse under Section 512(f), and recover damages and your attorneys' fees. See EFF case Online Policy Group v. Diebold .

When can I claim the safe harbor for comments others post to my blog?

If you're concerned that people might post copyrighted material to your blog, you might want to be able to use the DMCA safe harbor yourself. You too can be a "provider of online services" — all you need to do is designate an agent for notification with the Copyright Office. The safe-harbor provision requires that providers have a policy against repeat copyright infringement by their "subscribers and account holders." If you have no subscribers or account holders, that policy can be as simple as "If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate them."

I'm a music blogger, and I'm concerned that my blog will be taken offline by bogus DMCA notices. What extra steps can I take to protect myself?

Bloggers who write about music regularly and include links to music in their posts should read Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship .

More information on the DMCA safe harbors:

Questions About Trademark

I want to complain about a company. Can I use their name and logo?

Yes. While trademark law prevents you from using someone else's trademark to sell your competing products (you can't make and sell your own "Rolex" watches or name your blog "Newsweek"), it doesn't stop you from using the trademark to refer to the trademark owner or its products (offering repair services for Rolex watches or criticizing Newsweek's editorial decisions). That kind of use, known as "nominative fair use," is permitted if using the trademark is necessary to identify the products, services, or company you're talking about, and you don't use the mark to suggest the company endorses you. In general, this means you can use the company name in your review so people know which company or product you're complaining about. You can even use the trademark in a domain name (like walmartsucks.com), so long as it's clear that you're not claiming to be or speak for the company.

Since trademark law is designed to protect against consumer confusion, non-commercial uses are even more likely to be fair. Be aware that advertising may give a "commercial" character to your site, and some courts have even gone so far as to say that links to commercial sites makes a site commercial. (See PETA v. Doughney )

Can I use a trademark in my blog's name or in the title of a blog post?

Yes, if it is relevant to the subject of your discussion and does not confuse people into thinking the trademark holder endorses your content. Courts have found that non-misleading use of trademarks in URLs and domain names of critical websites is fair. (Bally Total Fitness Holding Corp. v. Faber, URL http://www.compupix.com/ballysucks; Bosley Medical Institute v. Kremer, domain name www.bosleymedical.com). Companies can get particularly annoyed about these uses because they may make your post appear in search results relating to the company, but that doesn't give them a right to stop you.

Sometimes, you might use a trademark without even knowing someone claims it as a trademark. That is permitted as long as you're not making commercial use in the same category of goods or services for which the trademark applies. Anyone can sell diesel fuel even though one company has trademarked DIESEL for jeans. Only holders of "famous" trademarks, like CocaCola, can stop use in all categories, but even they can't block non-commercial uses of their marks.

More information on trademark:

Questions About the Right of Publicity

What is a right of publicity claim?