Another Misguided Lawsuit: Ustream Sued Over Users' Actions
from the trademark-safe-harbors dept
In this case, though, there's a little tidbit, brushed over by the original article, but which suggests how One Ring hopes to get around the DMCA safe harbors on copyright infringement. It's not just suing Ustream over copyright, but it's also claiming that since its logo was seen via the broadcast, Ustream is also guilty of trademark infringement. That's because there's an annoying loophole in that trademark is not technically covered by either the DMCA's safe harbors or the CDA's safe harbors. The DMCA only covers copyright, and the CDA specifically exempts "intellectual property," thus leaving trademark in nowhere's land between the two. Not surprisingly, this has become a popular loophole for lawyers to try to exploit (in fact, we were recently threatened on this very point).
That said, it still seems like Ustream should have a strong case. Even if trademark is not explicitly covered by a safe harbor, simple common sense should make it clear that the company should in no way be liable for the actions of its users. On top of that, claiming that its trademark infringement to show the One Ring logo is also quite questionable and hardly seems likely to stand up under scrutiny. Still, it's an annoying lawsuit that Ustream has to deal with, for no particular reason.