eCommerce, Amazon, and the DMCA: Fighting Intellectual Property Bullying
Fighting Intellectual Property Bullying – Amazon Sellers & the Digital Millennium Copyright Act (DMCA)
Amazon’s implementation of the DMCA through their policy ultimately results in countless seller account suspensions every week.
Intellectual property complaints have skyrocketed on the platform likely due to manufacturers’ success in getting small sellers “kicked off.”
Facts scenario:
An Amazon Seller buys products at her local Wal-Mart from the discount rack and subsequently sells them on Amazon. The seller is able to sell the products at greater margins than Wal-Mart can at that particular store.
Pursuant to the DMCA, Wal-Mart’s brand management can file a complaint with Amazon for copyright infringement and can immediately get this small seller’s account privileges removed.
In reality, there is no copyright infringement, but now the burden is on the “little-guy” to appeal to Amazon for their account reinstatement. This often requires a lawyer because most Sellers are unfamiliar with intellectual property law.
What makes it even more difficult is that Amazon requires the complainant to rescind their complaint before they are willing to reinstate the seller’s account. Without a lawyer to contact the rights owner on their behalf and explain the facts and circumstances surrounding the application of the law, a layman is unlikely to succeed in getting their account reinstated on their own.
In addition, the process of getting reinstated can sometimes take up to two weeks or in some situations, even longer if the rights owner is unwilling to cooperate. In many situations, major brands and brand managers refuse to respond unless a lawyer is involved.
This scenario is very similar to what congress has recognized in other contexts as trademark bullying. Only here we are dealing with e-commerce business practices and copyright complaints.
Trademark Bullying on Amazon.com – Fighting Intellectual Property Bullying
Trademark bullying can be defined as:
“the vexatious practice of a trademark [or here, a copyright] owner that uses its trademark [or copyright] rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow.”
Leanna Kelly, Amazon Lawyer’s Expert Insight into Amazon Seller Account Suspensions, CPC Strategy (August 10, 2016), http://www.cpcstrategy.com/blog/2016/08/amazon-seller-account-suspensions-qa/.
Roxana Sullivan & Luke Curran, Trademark Bullying: Defending Your Brand or Vexatious Business Tactics? IP Watchdog (July 16, 2015)
Essentially, on the Amazon platform, sellers are victimized by this bullying and are usually forced not only to hire an attorney for help, but lose profits every day that they are fighting to get reinstated.
It is common for successful third party Sellers on the Amazon platform to make most of, or even all their income from their business on the platform, and because suspensions can sometimes take weeks to resolve, a baseless complaint can result in significant profit losses for Amazon Sellers.
The DMCA: What is an Internet Service Provider?
In 1998, Congress enacted Title II of the Digital Millennium Copyright Act (DMCA).
“The Online Copyright Infringement Liability Limitation Act (OCILLA), codified in § 512, protects qualifying internet service providers (“ISPs” or “service providers”) from liability for monetary relief for direct, vicarious, and contributory infringement and, often, from injunction where infringing or allegedly infringing materials are carried on the system without the knowledge and involvement of the service provider.”
The definition of ISP is broad, and includes ecommerce websites such as Amazon, eBay, and Alibaba.
The purpose of the DMCA in the words of congress was to address:
“the controversial questions of copyright liability in the online world.”
However, in reality we are faced with issues that the DMCA did not anticipate, specifically across many ecommerce platforms. The DMCA requirements have forced the hands of ecommerce platforms in shaping their respective policies for handling copyright infringement. The Amazon platform refuses to assess the validity of intellectual property complaints. On Amazon, if an allegation is made against a Seller’s account, Amazon will immediately remove the accused Seller’s privilege to sell on the platform.
Amazon and the Safe Harbor Provision
The DMCA offers what is known as the DMCA safe harbor provisions, and while not a total defense, these provisions provide a shield for internet service providers who qualify and normally would be held contributorily or vicariously liable for copyright violations.
The DMCA outlines requirements for service providers who wish to be protected by the safe harbor provisions in §512(c). For example, when a service provider receives a take-down notice (official notice of an infringement allegation) from a copyright owner, they are required to “expeditiously remove or disable access to the infringing material.”
This requirement puts pressure on ecommerce platforms to eliminate potential infringement as quickly as possible, and results in the flawed system where no one is verifying that the intellectual property complaints filed are actually valid.
http://www.ipwatchdog.com/2015/07/16/trademark-bullying-defending-your-brand-or-vexatious-business-tactics/id=59155/.
Leanna Kelly, Amazon Lawyer’s Expert Insight into Amazon Seller Account Suspensions, CPC Strategy (August 10, 2016), http://www.cpcstrategy.com/blog/2016/08/amazon-seller-account-suspensions-qa/.
Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512 (2016).
Debra Weinstein, Note, Defining Expeditious: Uncharted Territory of The DMCA Safe Harbor Provision: A Survey of What We Know and Do Not Know About the Expeditiousness of Service Provider Responses to Takedown Notifications, 26 Cardozo Arts & Ent L.J. 589 (2008).
See; Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004).
Weinstein, supra note 3.
Fighting Intellectual Property Bullying written by: Rob Segall and CJ Rosenbaum, Esq. of Amazon Sellers Lawyer. Rob Segall is a paralegal with Amazon Sellers Lawyer. He has a bachelor’s degree in business administration with a focus in finance. Robert is currently pursuing his Juris Doctor as a third year student at Maurice A. Deane School of Law and will graduate with a concentration in Intellectual Property Law. Robert’s financial background and experience provide him with unique insight into the needs of Amazon Sellers and allow him to efficiently identify and serve client’s needs.