Continuing my live coverage of Search Engine Strategies – San Jose 2007…

This morning I was asked to be the (un)official photographer of the keynote speech with Jim Lanzone of Ask.com, which meant that I was unable to blog the session. Given that there was no internet connection, and Jim spoke nineteen to the dozen, I’m glad that I had decided against it.

This session is on trademark and copyright issues as they pertain to Search Marketing. The moderator is Jeffrey Rohrs.

First speaker – Clark Walton. His topic is the DMCA (Digital Millennium Copyright Act) and take down notices. DMCA section 512 is the online copyright infringement section. How does it work? Copyright owner finds the infringement, files a takedown notice with the service provider. Service provider removes content. User (infringer) can respond. If no response the content stays offline (happens in most cases).

Copyright owners like this because it’s easy (2 pages), fast (less than 24 hours), cheap (no filing fee, and no litigation). Online service providers like it because it provides immunity for them.

Minimum requirements

• ID the copyrighted work
• ID the infringing material
• Copyright owner / Agent contact info
• Statement re: good faith belief of infringement
• Statement that filer is authorized
• Signature

Can be filed with hosting companies, Search Engines, or any User Generated Content site.

You can complain about copyright infringement for text, photo’s, videos, etc.

DMCA drawbacks

• US Geographic limitations
• PPC Trademark is a different issue
• Won’t help with domain names
• Won’t help with defamation
• No penalty to infringer, they can infringe over and over again. Note: Repeat offenders are usually terminated by the service provider

Make sure you own the copyright, and it is an infringement, not fair use, otherwise you could be responsible for legal costs for the alleged infringer.

Next up was Eve Chaurand-Fraser, who represents Ask and is the person there that gets the takedown notices. She showed the different policies that Ask has on copyright infringement, counterfeit goods, and Trademark infringement up on their site.

What not to do when filing a DMCA takedown request

• Be vague
• Be argumentative
• Be threatening – Search engines don’t like to be sent Cease and Desist letters

What to do when filing a DMCA takedown request:

• What search term
• URL of the original content
• URL of the infringing content
• Who Is lookup information for the infringing domain
• Use screenshots

Ask allows you to purchase a trademarked term for PPC, but you are not allowed to use the trademark in the ad copy.

1/3 of requests are copyright, 1/3 are trademark, 1/3 are frivolous requests.

Mary Berk is the next speaker and will be talking about trademark policy at Microsoft AdCenter. Microsoft is currently updating the trademark policy, effective September 10th (Late August – early September, account managers will contact trademark owners with details of the change). In MS advertisers may not bid on a trademarked term, nor may they use that term in the ad copy. Once a claim has been submitted to MS, they will then put a watch on that term to catch future infringements.

Once a concern has been submitted to MS, they will review the claim, and flag infringements.

Why are they changing their practices?

• It’s difficult to enforce an agreement that they’re not a party to
• It’s frustrating to pre-verify trademark owners before ads go live
• Additional advertiser provides more relevant results
• Aligns MS with industry practices.

Benefits

• Faster process through editorial review
• Clear-cut rules for advertisers
• Added relevance for end users

Challenges

• Identifying direct competitors in countless industries

DMCA violations can be sent to MS through web form, email or snail mail. They prefer the web form, as the data will be formatted how they want, which will ensure that they have the data that they need, therefore they should be able to process and investigate the issue faster.

Screenshots should be taken as MS will serve different ads based on demographic targeting. If you give plenty of data to them, they should be able to reproduce the ad though.

Debra Wilcox is the next speaker on this topic. When does outside council need to be involved with IP issues?

• When the problem first arises.
• When the problem persists.
• When the problem is severe

Identify the real parties involved:

• Competitors: companies and officers
• Search engines
• Other Distributors

Make sure your IP rights are in order:

• Do you own your trademark / copyright / domain names?
• Register trademarks and copyrights – USPTO.gov & copyright.gov

Determine the harm that’s being caused to the business. Be specific, what damage is the infringement causing?

If everything else fails, there’s still the option of a lawsuit, and you can ask for a temporary restraining order. A preliminary injunction can also be used to stop the infringement.

What to seek through litigation

• Profit details
• Details on the scope of the problem
• Promise to cease infringing
• Corrective advertising
• Recall
• Judgement “on the books”

Is there the possibility of Monetary recovery due to an infringement?

• Attorney’ fees
• Infringers profits
• Damages
• Statutory damages

The last speaker is Eric Goldman. Every company is both a consumer and producer of intellectual property. So you need to think from both sides of the argument. He has no powerpoint slides, and only 2 points…

Point #1 – Don’t be duplicitous. If you infringe, don’t send out takedown notices for your IP. Do unto others as you would have them do unto you.

Point #2 – Invest your dollars in IP protection and enforcement wisely. Don’t freak out when you first find a potential infringement. Take some time, research the issue before you start sending out takedown notices. Examine the opportunity cost of your expenditure. Is the money spent on infringement enforcement better spent on marketing? Sending bogus DMCA notices may result in you being sued yourself…

Remember a Creative Commons license gives everyone the license to use your work…

Filed under: Education and Training, SEO on Tuesday, August 21st, 2007 by Simon Heseltine | 1 Comment
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