Ad Networks Announce Guidelines For Dealing With Piracy

Ad networks including AOL, Conde Nast, Google, Microsoft and Yahoo announce best practice guidelines. The beginning of notice and takedown for trademarks? Coverage here, text of guidelines:

U.S. companies that offer “Ad Networks” in the U.S., as further defined below, are committed to maintaining high quality standards for advertisers and publishers and at the same time respecting intellectual property rights.

Ad Networks do not control the content on third-party websites and are not able to remove websites from the Internet. Nor can Ad Networks engage in extensive or definitive fact finding to determine a particular party’s intellectual property rights. Nevertheless, we believe it is useful for Ad Networks to maintain policies intended to discourage or prevent, to the extent possible, websites that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses from participating in the Ad Network. The signatories to this Statement have individually decided to adopt these voluntary best practices in furtherance of that goal.

Each signatory will independently maintain internal procedures designed to implement these practices. This is an important step toward maintaining a healthy Internet and promoting innovation and protecting intellectual property. These efforts should be undertaken in a manner that is consistent with all applicable laws and the balance of copyright interests, including fair use, and that respects privacy, free speech, and fair process.

The sale of counterfeit goods and copyright piracy are issues Ad Networks take seriously, and Ad Networks have policies and practices in place to address this problem. Rights holders are in the best position to identify and evaluate infringement of their intellectual property. Therefore, the Ad Networks agree that without specific, reliable notices from rights holders, Ad Networks lack the knowledge and capability to identify and address infringement. Accordingly, intellectual property holders are expected to be accurate in demonstrating infringement of their copyrights and trademark rights and to target only infringing conduct. We believe that policies for Ad Networks should reflect best practices that encourage and supplement, not replace, responsible and direct independent actions taken by intellectual property owners to enforce their intellectual property rights.

To reflect these important principles, Ad Networks will voluntarily seek to observe the following best practices:

General Commitment:
(a) Maintain policies prohibiting websites that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses from participating in the Ad Network’s advertising programs and post such policies on the Ad Network’s website;
(b) Maintain and post these best practices guidelines on the Ad Network’s website;
(c) Ad Network policies will include language indicating that websites should not engage in violations of law;
(d) Participate in an ongoing dialogue with content creators, rights holders, consumer organizations, and free speech advocates.

Identification and Verification Process:
(e) Agree to (i) be certified against the Interactive Advertising Bureau (lAB) Networks and Exchanges Quality Assurance Guidelines, or (ii) maintain an independent quality assurance vetting and auditing process; and work to support such measures across industry;

Complaint Process:
(f) Accept and process valid, reasonable, and sufficiently detailed notices from rights holders or their designated agents regarding websites participating in the Ad Network alleged to be principally dedicated to selling counterfeit goods or engaging in copyright piracy and to have no substantial non-infringing uses. To enable Ad Networks to respond most effectively, such notices should provide information outlined in Exhibit A attached;
(g) Publicly post on the Ad Network’s website the contact information for its designated agent for receiving such notices from rights holders or their designated agents;
(h) Upon receipt of a valid notice, perform an appropriate investigation into the complaint, including a determination of whether the website has a direct contractual relationship with the Ad Network. An Ad Network may take steps including but not limited to requesting that the website no longer sell counterfeit goods or engage in copyright piracy, ceasing to place advertisements on that website (or pages within that website) until it is verified that the website (or pages within the website) is no longer selling counterfeit goods or engaging in copyright piracy, or removing the website from the Ad Network; and
(i) Upon receipt of a valid notice, Ad Networks may consider any credible evidence provided by the accused website that it is not principally dedicated to selling counterfeit goods or engaging in copyright piracy or has substantial non-infringing uses. Such credible evidence may take the form of a counter-notice containing the elements set forth in 17 U.S.C. § 512(g)(3). In addition, Ad Networks may also consider any response by the rights holder to credible evidence provided by the accused website in defense of its conduct.

The policies and procedures of any individual Ad Network will be independently designed to achieve reasonable mechanisms to help prevent the participation of websites that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses in each Ad Network’s advertising programs based on the unique aspects and experience of each Ad Network. This Statement is not intended to impose a duty on any Ad Network to monitor its network to identify such websites. Similarly, it is understood that the voluntary best practices reflected in this Statement should not, and cannot, be used in any way as the basis for any legal liability or the loss of any applicable immunity or “safe harbor” from such liability.

The term “Ad Networks” encompasses only services whose primary business is to broker for compensation the placement of website display advertisements and does not include services which are ad-serving platforms or ad exchanges.

Exhibit A – Notice

The exact form and structure of Notice may vary somewhat by Ad Network; however, generally, a notice must include, at minimum, the information listed below, and should be sent to the Ad Network’s Designated Agent for such notices.

(a) A description of the alleged sale of counterfeit goods and/or copyright piracy (the “Illegitimate Activity”) that includes (i) the specific URLs where the alleged Illegitimate Activity occurs; (ii) the identity, location and contact information for the participating website allegedly engaged in Illegitimate Activity. If only certain items or materials on a website are alleged to be illegitimate, the Notice must clearly identify those specific products or materials and their location on the website.

(b) Evidence (i) of the Illegitimate Activity, by providing, for example, a recent time-and-date-stamped screenshot of the page containing both the Illegitimate Activity and advertising from the Ad Network and (ii) that the advertising appearing on the participating website containing the Illegitimate Activity is provided by the Ad Network. This can be done by providing, for example, a Tamper Data trace and relevant screenshots showing that the participating website is making ad calls to the Ad Network for the advertising reflected in the screenshots.

(c) A copy of the rights holder’s notice provided to the website under 17 U.S.C. § 512 or the cease & desist letter related to the Illegitimate Activity provided to the website, along with responsive communications or a description of action undertaken by the website;

(d) A statement under penalty of perjury that the person submitting the notice has a good faith belief that the Illegitimate Activity is not authorized by the rights holder, its agent, or the law; that the information and materials provided to the Ad Network are accurate; that the person submitting the notice owns the copyright or trademark for the products or materials that are the subject of the notice (in the case of trademark, including evidence of a federal trademark registration from the United States Patent and Trademark Office for the product or materials that are the subject of the notice) and, if not the owner, that the person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

(e) Information reasonably sufficient to permit the Ad Network to contact the rights holder, such as an address, telephone number, and an e-mail address.

(f) Physical or electronic signature of a person authorized to act on behalf of the rights holder.

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