Amberfi engaged the services of Lance Koonce of a leading Web3 intellectual law firm, Klaris, to answer questions from members of the community like, “Who takes responsibility for NFT copyright infringement?”.
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Q: What kind of liability and risk do you take on if NFT copyright infringement takes place on a Web3 platform you host?
A: That’s an open question to some extent. What we have in the United States, at least in terms of protection for platforms, is the Digital Millennium Copyright Act, which has procedures for sending in takedown notices. The platform then has to respond in particular ways. At some level, they have to be monitoring things like infringement and if they receive a valid takedown notice they have to remove the infringing content from their site.
If the platform follows the rules and follows the part of the Copyright Act that deals with those kinds of infringements, then because the content has been uploaded by a user, the platform gets some immunity. It’s a safe harbor from infringement claims, because otherwise, under copyright law, everybody involved in the NFT copyright infringement case would otherwise be sued.
This was something that Congress put in place a while ago to try to allow platforms to grow and flourish. If you are a platform, there’s a question about how much ownership you take of the content that you bring onto the platform. So if you’re YouTube and a user just posts their own video, if it’s infringing on someone else’s content, then YouTube follows the rules under the DMCA and deals with infringement takedowns as they come in. They’re protected and they shouldn’t be sued in that circumstance. But if a party that was in the same position as YouTube took the video in, edited it, made some changes or promoted it in a particular way, then the platform could be held liable.
I think that many of the NFT platforms that are out there take the position that all they’re doing is creating a platform for other people’s NFTs. A creator goes onto a platform, they pick the content, then they mint it, and it goes out into the world. That marketplace doesn’t touch the content.
So I think any marketplace would take the position that they’re protected under the Copyright Act, because it’s not their content. But there’s a whole range of NFT platforms out there, some of which become far more involved in the creation of the content and minting of the NFTs. That’s why I think for some of them, there may be an open question as to what kind of legal liability they might have in NFT copyright infringement situations..
Digital art at top by Mo on Unsplash; middle artwork by StefWithAnF on Pixabay
Editor’s note: We hope that this piece on NFT copyright infringement has been useful. This article is part of a series about NFTs and the law. Check out our blog for additional articles on the subject that will appear each week. Listen to our podcast episode with Lance Koonce on these topics here.
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