Non-fungible tokens (NFTs) are all the rage. They're a main topic on Clubhouse. Major news outlets are not only featuring them in news segments, but some like the New York Times and Time Magazine have sold a column and covers on the blockchain. Every week, there seems to be a new celebrity, musician, or professional athlete joining the let's drop an NFT craze. These are corporate entities and famous people with established brands, it's unlikely someone would try to copy their NFT and pass it off as their own, on one of a plethora of NFT-hosting platforms. So, what happens when the work of a lesser known artist gets hijacked and it's posted on a NFT platform for sale?
The Digital Millennium Copyright Act (DMCA)(17 U.S.C. ยง 512) is a legislative measure that protects creators of online content against copyright infringement. For some Internet activists, the DMCA is seen as stifling innovation and fair use, but that's a different conversation for another blog. Our focus is the possible remedy it can offer to copyright owners who see infringement on NFT platforms. First and foremost, the DMCA protects copyrights, not trademarks or patents.
How does it work? The copyright owner initiates the process by sending a takedown notice to the online service provider (OSP) to inform about the infringing work. If the infringing work isn't a direct copy of the original, but the copyright owner thinks its heavily inspired by the original, then seeking legal counsel may be wise for the next step. Before sending the notice, the copyright owner must have a good faith or honest belief that the infringing work doesn't fall under fair use protection. Fair use factors include: (1) purpose and character of use, (2) nature of the copyrighted work, (3) amount of the portion used, and (4) effect of the use on the market value. NFT platforms like SuperRare won't make that determination for the copyright owner.
However, if an OSP receives a takedown notice, they have to act immediately to remove or block access to the infringing work. The DMCA incentivizes OSP action by extending safe harbor against copyright liability. In order to receive that protection the OSP must: implement a takedown notice procedure on the website, designate a point person to receive the copyright claims, and a repeat infringer's policy.
How do I find the web host? Rarible and OpenSea are hosted by Cloudfare, which has an abuse form submission. Nifty Gateway has its DMCA policy information on its Terms of Use webpage. Amazon's cloud service, AWS, has an instructional page for its DMCA takedown notice procedure. If the NFT platform can't be contacted, try searching the web host via http://whoishostingthis.com.
For more information on the Digital Millennium Copyright Act and the Takedown Notice, visit the U.S. Copyright Office.
The contents of this blog are for informational purposes only and may not be relied on as legal advice.
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