Common Law Notice-and-Takedown

<p>Platform liability is a complex landscape under U.S. law. The immunity for users’ torts provided by Section 230 of the Communications Decency Act has understandably garnered the most attention. In addition, many intellectual property law scholars have also examined the requirements of the Digital Millennium Copyright Act (“DMCA”), which provides safe harbors for users’ copyright infringements. The DMCA enumerates a long series of requirements that online platforms must satisfy to be immunized for their users’ infringements, including a notice-and-takedown regime, a repeat infringer policy, and a prohibition on having the right and ability to control and a direct financial benefit.</p> <p>There is also a third, more opaque and less scrutinized regime: trademark law’s common law notice-and-takedown system stemming from, most notably, the Second Circuit’s decision in <i>Tiffany v. eBay</i>. While the DMCA provides a large set of statutory requirements, the <i>Tiffany v. eBay </i>framework says very little beyond requiring removal of content upon specific knowledge that it is infringing a trademark. The common law is—as of yet—unwritten.</p> <p>This Article seeks to understand how soft law norms for online platforms’ trademark infringement notice-and-takedown policies have developed in the absence of strict legal rules. This study examines the trademark policies and other publicly reported practices of nearly four dozen major online platforms in marketing-related sectors, including social media, blogging and reviews, e-commerce, and print-on-demand. There is necessarily ambiguity about how platforms individually respond to each proper notice, but this public information nonetheless provides insights on how platforms have approached notice-and-takedown in the trademark context. The findings suggest that the DMCA is a significant influence on the trademark notice-and-takedown practices online platforms have adopted. Nonetheless, the capaciousness of common law notice-and-takedown has allowed platforms to vary their policies and practices considerably. Some platforms have adopted more onerous takedown requirements, while others seem to streamline procedures for rights owners. Platforms in the same sector seem to adopt each other’s practices more frequently. These findings not only help us understand how online trademark infringement policies have developed, but also provide a guide as to how soft law norms around common law notice-and-takedown may emerge for other areas of law, especially if Congress repeals Section 230 and platforms can face liability for their users’ torts.</p>