Facebook Copyright Infringement
The sheer volume of users and content makes Facebook a likely place for copyright infringement to occur. Facebook copyright infringement occurs when someone publishes a work without the authority of the copyright owner.
Years ago intellectual property watchdogs claimed that Facebook facilitated copyright infringement with lax standards which prompted the social media company to strengthen its implementation copyright protection.
Facebook clearly directs users on the importance of respecting intellectual property (IP) rights belonging to another individual or entity. Facebook’s Terms of Service and Community Standards prohibits posting this type of content unless one of the following is true:
- The poster owns the content.
- The user has purchased a license or received permission (preferably written) to post the content.
- The content resides in the public domain.
- Use of the content is protected by fair use.
Sending a Cease and Desist Letter Directly to the Infringer
Whenever copyright infringement occurs, we suggest sending a cease and desist letter to the infringer. A cease and desist letter should take the form and tone of a notice, and contain the following elements:
- Clear indication of the recipient’s unauthorized use of the copyright owner’s work
- Statement of copyright owner’s legal rights
- Demand to cease and desist from the unauthorized use of the copyrighted work
- Consequences for not complying with the demand
Since falsely accusing someone of copyright infringement or making a mistake can lead to legal liability, we highly recommend that you have a copyright lawyer send the cease and desist letter for you. For more information, please see our copyright cease and desist letter page.
Receiving a Cease and Desist Letter Regarding Copyright Infringement
Cease and desist letters run the gamut in terms of what the sender wants and how the alleged infringer may respond. Some copyright holders simply request that the infringer take down the copyrighted content. Others may seek damages or a fair licensing fee for having used it. When the damages are significant, the owner may seek statutory damages in copyright litigation. Either way, the alleged infringer should investigate:
- The origin of the copyrighted material and any licensing discrepancies
- Whether a statute of limitations period has expired
- Whether the owner waited an unreasonable length of time before enforcing the copyright
- Whether the sender’s copyright was valid when the infringer used the content in question
Next, the alleged infringer should have an attorney send a response to the cease and desist letter. It should include the following:
- Reference to the claim
- Validity of the copyright claim
- Defenses for use of the content
- Notice that the material has been removed if appropriate
- A settlement proposal
Taking a Facebook Copyright Infringement Case to Court
Some Facebook copyright infringement cases wind up in the court system, in which case they follow the usual legal procedures to resolve accusations of copyright infringement:
- Plaintiff files a Complaint, which is served to the defendant.
- Defendant responds to the Complaint with an Answer or Motion to Dismiss.
- Discovery allows both sides to request documents, send and answer interrogatories, and participate in depositions.
- Both parties may file Motions asking the Court to take specific actions.
- Case goes to trial during which both parties present evidence to prove or disprove the alleged copyright infringement.
- The judge or jury may award damages if it finds the defendant infringed upon the plaintiff’s copyright.
- Either party may appeal the decision.
In practice, very few cases go to court and the cases that do go to court typically settle quickly rather than proceed toward trial.
How to Report Facebook Copyright Infringement
Facebook employs its own DMCA agent to directly receive takedown notices using the service provider’s own forms.
Copyright owners can choose one of several methods and channels when reporting copyright infringement to Facebook.
- Facebook’s Online Form
Facebook offers tools that enable copyright owners to act on instances of copyright infringement. Upon suspecting that copyrighted material has been infringed, the copyright owner can complete a form in Facebook’s Help Center, located under “Intellectual Property/Copyright.” Due to potential legal liability, actions like this should only be done by a copyright attorney.
- Contact Facebook’s DMCA Agent
Facebook also employs a DMCA agent whom copyright owners can contact to report infringements. When they communicate with the DMCA agent, the owners will be required to include a copyright report, either via Facebook’s online form or using some other medium.
DMCA Notice and Takedown Process
The DMCA notice and takedown process enables copyright owners and service providers like Facebook to collaborate on the fight against copyright infringement. Specifically, the DMCA lets copyright owners or their agents submit takedown notices to online platforms like Facebook, identifying postings on the platform that infringe on the owners’ copyrights and requesting that the infringing content be removed from the platform.
DMCA takedown notices are sent to Facebook, who then acts on the notice as it sees fit. Facebook does not have to remove such content in response to the takedown notice, but such refusal is not common as it puts the company at risk of liability for facilitating copyright infringement. The DMCA Takedown Notice process requires that specific information accompany the removal request. A failure to provide all the required elements could result in Facebook leaving the infringing material posted on its site. Regardless of the medium chosen for reporting the copyright infringement, the copyright owner will need to supply the following information to Facebook:
- Contact information
- Details on the content that is being reported as infringing on a copyright, including a link to the offending material
- Details on the copyrighted material, including a link to an example of the work, or, if the work does not appear online, a description of the work (image files and PDFs may be attached for this purpose)
- Declaration statement, where the copyright owner agrees that he or she has a good faith belief that the content presented was reproduced on Facebook without authorization, that the information provided is accurate, and that the submitter is the owner of the IP.
Facebook’s copyright infringement reporting tool makes clear to users the seriousness of reporting any intellectual property (IP) infringement. The site warns users that by intentionally filing a false report of copyright infringement, they are subjecting themselves to possible termination of their Facebook accounts, as well as liability for damages as outlined by DMCA’s section 512 (f). Other countries enforce their own laws for this type of fraudulent action.
Facebook will confirm receipt of the copyright infringement report via an automated email to the owner or to whomever completed the report on the owner’s behalf. The organization’s DMCA agent will review the report and will follow up via email with any questions about the information provided.
Possibly, the infringing Facebook user will contact the copyright owner directly using the email provided in the form in an effort to resolve the matter. It is also possible that the user will submit a counter-notification, if the owner followed DMCA notice procedures.
Appealing an Accusation of Copyright Infringement on Facebook
The offending Facebook user will be notified of the copyright infringement report. Facebook will attach information about the claim with this notification, including:
- Copyright owner’s name
- Copyright owner’s email address
- A description of the copyrighted work
- A description of the user’s content that Facebook removed in response to the infringement report
- Details on how to follow DMCA’s counter-notification procedure, if relevant
When an alleged infringer receives Facebook’s copyright infringement notice, he or she may use Facebook’s DMCA Counter-Notification form to dispute the alleged infringement and request that the removed materials be restored. This form requires that the alleged infringer explain why the content should be restored, as well as contact information and details of where the content appeared.
When Facebook notifies the alleged infringer of the takedown notice, he or she might respond with a counter notice that explains why the content he or she posted does not constitute infringement. A false counter notice is a serious offense for which a claimant can be punished under federal law. Furthermore, the claimant can be sued in civil court and held liable for the offense.
Facebook notifies the copyright owner of the counter notice, then waits between 10 and 14 days. It is up to the copyright owner to file a lawsuit against the infringer within this time frame in order for the infringed content to remain removed from Facebook. However, if the owner does not file a lawsuit, the service provider will republish the content.
Infringers who continue to post infringing content on Facebook face several possible consequences:
- Accounts disabled
- Pages removed
- Limited ability to post photos and videos
- Loss of functionality on Facebook
- Legal action
Facebook will reconsider these consequences if materials are restored after an appeal or if an infringement report is withdrawn.
Facebook’s Tools for Protecting IP in Videos
Facebook implements various online tools that owners can tap to protect their IP.
Audible Magic – When copyright owners have videos that they do not want people to upload to Facebook without authorization, they can use this tool to code the content with a digital fingerprint. Any time a user uploads a video, Facebook scans the video with Audible Magic for this fingerprint identifier, rejects the upload, and notifies the owner of the video.
If you have an issue with Facebook copyright infringement, please contact us today.