Navigating the DMCA law: SES

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SAN JOSE û Search marketers will almost certainly run into copyright or trademark infringement issues at some point in their careers. A panel of lawyers at the Search Engine Strategies Conference and Exhibition discussed law fundamentals and tactics in regards to the Digital Millennium Copyright Act (DMCA).

Microsoft announced today that it has updated its trademark infringement policy, and the changes will go into affect September 10. Users cannot bid on trademarked keywords, nor can they use the trademarks in their ads.

"Now affiliates and resellers must submit a document for permission to bid on a trademarked keyword," said Mary Burke, director of marketplace quality for Microsoft. "Once a trademark owner puts a complaint in, Ad Center reviews it and decides on whether it is an infringement or not."

This change is being made because Microsoft's current process frustrates legitimate advertisers.

"Copyright infringement includes three parties û the copyright owner, the online service provider and the user and infringer," said Clark Walton, attorney at the Walton Law Firm.

The copyright owner usually spots an infringement online and notifies the online provider via a take-down notice.

The user has a certain amount of time to respond and, if they do not, the trademarked item is taken down.

"Copyright owners like the DMCA because it is fast, easy and cheap," Walton said. "Online providers like the DMCA because it provides immunity to them and they don't ever have to pay a monetary fine."

Eve Chaurand-Fraser, online compliance officer for IAC Search and Media, spoke about the DMCA and how to fill out take-down requests.

First identify the infringement and list the copyright owner's contact information. The law requires that a statement of good faith be included and that the filer is authorized. A signature is required as well.

"Don't be argumentative, don't be vague and don't threaten the search engine," Fraser said.

She told the audience that Ask.com gets about ten take-down requests per week.

A take-down request can be filed with the service provider or the hosting company, such as a search engine.

If the infringement occurs on a site whose content provider is overseas, a request to take down materials need not be honored. However, repeat offenders' accounts are terminated by the service providers.

"Be sure you own the copyright, be sure it is really an infringement and make it easy for the service provider to understand your request," Fraser said.

Eric Goldman, assistant professor-at-law at the Santa Clara University School of Law, acknowledged the importance of including both the URL of the original content as well as that of the infringed content. He also recommended using screen shots.

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