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The Take Down: IP and Website Removal

July 17, 2012 Blogs

Websites are key to business, whether directly through e-commerce or indirectly through advertising. And, they may be at risk. In the blink of an eye, an ISP or web host (collectively “hosts”) can take down a site based on mere allegations by a third party—including a competitor. You should understand the dynamics at play.

As a practical matter, hosts make initial takedown determinations following a complaint of copyright or trademark infringement. What is their perspective? Bottom line, hosts can incur liability to third parties for customer sites that contain infringing material. To manage that risk, hosts have (1) departments and procedures for fielding third-party complaints; and (2) customer service agreements granting the hosts wide latitude to make decisions.

Beyond liberal service agreements, the law also makes it very easy for hosts to err on the side of taking a website down. More specifically, for some types of allegations, the law provides a “safe harbor” to hosts if they merely take certain steps after receiving a complaint—even if those steps result in the site being taken down for bogus reasons. With other types of allegations, there simply is no safe harbor for hosts. In light of this, the $10/year paid by the site owner to the host may not be incentive enough to avoid a takedown after a complaint. An owner may need quick and convincing legal representation and advocacy to keep the site up.

So, if hosts have free rein, what can be done in the event of a wrongful takedown? Third-parties that initiate the takedowns (by hosts) are at risk. In the event that the takedown is wrongful, these third parties can be liable for damages incurred by the website owner, including statutory attorneys’ fees and costs in some instances.