By Dan Seymour
A common enforcement tactic regarding websites offering copyright or trademark infringing content involves preparing a formal Cease and Desist notice to the site explaining that they are infringing and detailing the specific instances of infringement found on the site. This tactic can and does work in many cases. But what happens when that notice goes unanswered and the site continues to infringe? This is particularly true of sites operated by individuals in jurisdictions that may not respect the laws of the country in which the content owner operates and from which the notice is sent. It seems that litigation may be the only recourse.
But litigation is expensive, time consuming, and does not always result in the complete cessation of infringement. Fortunately, another tactic exists that rightsholders can use: Go after the intermediaries (or 3rd parties) that are supporting the operation of the site. And by “go after” we mean send them notices that their customer is using their service(s) to infringe your rights, and request that they stop allowing this. Of course, successfully convincing intermediaries to cease doing business with a customer does not necessarily mean that customer can’t find other intermediaries. But the point is to make it as difficult as possible for recalcitrant operators of infringing websites to continue to infringe.
So, who are these intermediaries? An answer to that question will, no doubt, vary from site to site but, generally speaking, intermediaries include the following:
Hosting Providers
Websites are typically hosted by 3rd parties whose business is built, in part, upon the revenue generated from the hosting services provided to their customers. Without some kind of hosting provider, websites would not be accessible to Internet users. Thus, hosting providers offer crucial services and serve as a single point of failure for website operators. That is, if they lose their host, they lose their ability to continue to infringe.
Payment Processors
Websites whose business model consists of selling pirated goods, such as infringing eBooks, movies, music, software and/or games, typically do so using some kind of payment processor. These comprise 3rd parties who process payments on behalf of their customers’ ecommerce sites generally in exchange for a percentage of each transaction. Convincing them to cease doing business with the infringers removes an essential part of their business, i.e., the ability to collect payments for the sale of their infringing goods.
Search Engines
Websites commonly generate more revenue when they generate more traffic. And more traffic comes with increased visibility. Search engines have long been a vital resource for operators to increase the chances that users will visit their websites. This is also true for the operators of infringing websites. Fortunately, most of the well-established search engines will remove listings from their indexes when provided with sufficient evidence establishing that the listings lead to infringing content.
Advertising Providers
Generally, infringing websites generate their revenue in two distinct ways: By placing advertisements on their sites for which advertisers compensate them and/or by placing advertisements on 3rd party sites seeking to drive traffic to their site. In either situation, 3rd parties support the activity and are generally amenable to processing notices of infringement.
Domain Name Registrars
While domain name registrars truly count as 3rd party intermediaries, their liability is somewhat limited when it comes to the content of websites. On the other hand, if there is a trademark dispute regarding a domain name, content owners may use the Uniform Domain-Name Dispute-Resolution Policy (commonly known as the UDRP) to force registrars to turn over the infringing domain name to the content owner. While this will not force the website itself offline, it will take away its domain name, which is a key ingredient in advertising, search engine optimization and, to an extent, payment processing.