In Louis Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., et al., CV07-03952 JW (N.D. Cal. 2007), Louis Vuitton brought suit against hosting companies Akanoc Solutions Inc., and Managed Solutions Group Inc., as well as Steven Chen, the owner of the two companies. Vuitton’s attorneys sued these entities for contributory infringement of both trademark and copyright, and won a $32.4 million dollar verdict against the hosting providers!
The hosts attempted to argue that the Safe Harbor act of the DMCA should shield them from liability. But apparently evidence seemed to show that they knew the illegal activity was occurring on their network and they failed to stop it.
Many people are fearing that this case will set a precedent for hosts that will affect us all in ways that set a detrimental precedent in other copyright cases — or that hosts will no longer have the full measure of protections they deserve. I’m not sure that’s true. There are many prior precedents that show trademark cases being given protection under DMCA, and it makes sense that this would be the case. It may just be that, in this situation, people didn’t follow DMCA guidelines and meet their own obligations, in the process intentionally or unintentionally breaking the law.
We host a lot of resellers – a lot of people who are hosting providers themselves. I am concerned that some hosting providers may not be aware of the protections they are provided under the Digital Millennium Copyright Act, but also of the OBLIGATIONS that DMCA requires of hosts as well.
I am not a lawyer, and I cannot tell you what you need to do to plan for a trademark or copyright infringement case. But I can tell you that if you don’t HAVE a lawyer you should get one – and talk this stuff through with them. If you host and feel you don’t need one you’re wrong.
As such, I urge managers of ALL web-based services and applications do the following:
1) Learn about the protections available to you under the Digital Millennium Copyright Act, particularly outlined in Title II of the Act. A copy of the act is available
online at the USIIA web site at:
2) Ensure you are protected by the act. Service providers are protected ONLY if they register an agent with the U.S. Copyright Office. Details regarding the registration
process and forms can be found at the following site:
3) Remember that a request to remove copyrighted materials from any server under your control must be specific as to the content and location, and must meet a specific set of guidelines established for your protection.
4) If you receive such a request and do not know how to best proceed, seek assistance from an attorney familiar with copyright law and with experience dealing specifically with cases involving trademark infringement. If you do not have an attorney familiar
with this area of law, contact your friends here at ServInt for assistance in finding one.
DON’T wait until there’s a crisis to get your ducks in a row on this one. If you host ANYTHING you need a plan. You need to do your legwork to protect yourself, and you need to research your legal rights and obligations. As we can see with Louis Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., et al., CV07-03952 JW (N.D. Cal. 2007), the cost of negligence is pretty high!
As of today, it’s a $32.4 million dollar oversight.
Illustration by Christopher Dombres