Our Maryland intellectual property attorneys are also licensed in New York, Connecticut, Colorado
and Washington D.C. We have represented individuals and internet businesses in intellectual property
disputes arising from websites, platforms and social media. To speak with one of our attorneys, use the
contact form on this page or call (410) 752-9300.
Why the internet complicates IP
Copying online is effortless, instant and global, which is what makes intellectual property harder to
protect there than anywhere else. A photograph lifted from your site can be on a thousand others before
you notice. Most of the disputes we see start that way, with copying that was trivially easy and is now
expensive to unwind.
Much of the governing law predates the web. Trademark claims, from false advertising through
cybersquatting, run on the Lanham Act, 15 U.S.C. § 1051 et seq., which was enacted in 1946. Courts have
spent decades applying it to facts its drafters never imagined, and their decisions set the precedents
that later cases follow.
Some statutes were written for the problem directly. The Anticybersquatting Consumer Protection Act,
15 U.S.C. § 1125(d), addresses registering or using a domain name in bad faith where it is confusingly
similar to someone’s mark. A separate provision, 15 U.S.C. § 8131, deals with registering a domain
containing a living person’s name with intent to profit from selling it.
Copyright online, and the limits of fair use
Copyright infringement online consumes an enormous amount of monitoring effort on behalf of
photographers, musicians, authors and reporters. When people are accused of it, fair use is usually the
first thing they reach for, and it is more limited than its reputation suggests.
Fair use lives in 17 U.S.C. § 107, and courts weigh four factors: the purpose and character of the
use, the nature of the work, how much was taken, and the effect on the market for the original. Purpose
matters, so non-profit and educational use weighs in a defendant’s favor, but it is a factor rather than
a permission. Plenty of non-commercial uses have been held to infringe. Nobody should treat “it was not
for profit” as an answer.
Uses that transform the original tend to fare better than uses that simply reproduce it, which is why
criticism, commentary, reporting and parody often succeed where straightforward copying does not. Even
then it turns on the specific facts, and fair use is decided case by case.
Platform liability and safe harbor
The Digital Millennium Copyright Act of 1998 built a mechanism for online infringement. Under
17 U.S.C. § 512, a service provider or website host that meets the statutory conditions is shielded from
liability for infringement committed by its users, which is the provision usually called safe harbor.
Those conditions include acting on proper takedown notices and not having the kind of knowledge or
involvement the statute describes. See Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19
(2d Cir. 2012).
For a rights holder, safe harbor is the reason the takedown process exists and the reason it matters
that notices are drafted properly. For a platform, compliance is what preserves the protection.
Where we can help
Common problems include your work appearing on someone else’s site or social account, your mark used
in a domain name or username, a takedown notice you need to send or answer, content scraped from your
site at scale, and disputes about who owns material created for you by a contractor or agency. See also
trademark infringement
litigation and
copyright infringement
litigation.
Talk to a Maryland internet law attorney
Online disputes move quickly, and evidence disappears when a post comes down. If something is
happening now, call (410) 752-9300 or use the contact form on this page.