from the trademark-safe-harbors dept
It’s no surprise these days to see that service providers are getting sued for the actions of their users, but it is always fun to see how the lawyers for the plaintiffs try to get around the obvious problems of DMCA or CDA safe harbors. The latest case involves boxing promoter One Ring suing Ustream, one of a number of live video streaming companies out there. Like the misguided
lawsuit threat against Justin.tv, this involves a sports group suing the platform provider because a user turned their webcam towards the television, so that others could watch the stream. The DMCA pretty clearly makes these lawsuits entirely baseless, as the only liability is on the person who actually used the account and pointed the webcam at the TV (separately, the fact that you can potentially be guilty of copyright infringement for showing the world what you see with your own two eyes is quite troubling, but a discussion for a different day).
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.