Your Intellectual Property Rights: Enforcment with Web Evidence

As shoppers are increasingly gravitating online to scout out brands, products and services on marketplaces and social media, competitors and cybercriminals are increasingly taking advantage of opportunities to illegally profit from or tarnish other brands’ reputations online. Sales of knock-off products can result in lost profits and damaged reputations, and even though many online marketplaces and websites have procedures in place to take down infringing content and pages, these often involve mediation or delisting procedures that lead to underwhelming or unhelpful results.

One way you can combat infringers is to collect screen captures as evidence that documents how counterfeiters are manipulating your brand or client’s commercial reputation online. Many Uniform Domain-Name Dispute-Resolution Policy (UDRP) cybersquatting case decisions, for example, have regularly turned to screen capture evidence. In addition, federal courts have clarified that the Stored Communications Act does not protect publicly-viewable social media content from discovery, adding that restricted-view social media content is also discoverable under the law’s authorized user exception. This exception states that content viewed and submitted by individuals authorized to access it—including Facebook friends and Instagram followers—are not preempted from discovery if (i) access to the information was “authorized” and not made under pressure or coercion (ii) “by a user of that service,” (iii) “with respect to a communication…intended for that user.”

Authenticated screen-captured evidence, therefore, can be an invaluable weapon to argue intellectual property infringement during litigation. Changes to the Federal Rules of Evidence, under new rules 902 (13) and (14), will classify certified records that are generated by an electronic process, data collected from electronic devices, and online storage media, as self-authenticating, making them easier to introduce into evidence during litigation.

Some ways you can effectively incorporate authenticated website and social media screen captures during litigation include:

• Showing How Infringers Are Marketing and Showcasing Their Products and Services – Authenticated screenshot evidence can be especially useful for documenting how infringers are violating your brand by capturing videos, conversations, and campaigns that are published and distributed on social media, online marketplaces, and company websites.
• Using Metadata to Pinpoint Perpetrators – Many uploaded files and images contain hidden, extractable information that can help identify who uploaded the file and when the file was uploaded. This data—known as metadata—can help you identify potential defendants, uncover sources of discoverable evidence, and connect with helpful witnesses and custodians.
• Monitoring How Infringers Respond to Cease and Desist Correspondence – While sending cease and desist letters can be a useful first step for notifying infringers about your intellectual property rights, screen-captured evidence can help document and track how infringers responded to your efforts, if at all. If the infringers respond by taking further steps to infringe or degrade your brand online, screenshot evidence can be used in conjunction with your cease and desist letter to bolster your injunction, lawsuit, or ICANN complaint claims.

Intellectual property monitoring and enforcement has traditionally been a time-consuming and costly process. But, outsourcing the collection of web content related to an IP case to an experienced provider can make this process more efficient as well as give attorneys authenticated captures. Page Vault On Demand provides the services needed to receive accurate and certified captures in a format that’s admissible during litigation.

This post was authored by Eric Pesale, an attorney who writes about eDiscovery, data security and other legal topics for law firms, publications, and companies, and is the founder and chief legal contributor of Write For Law. He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in CSO, the New York Law Journal and Above the Law. Eric can be reached at eric@writeforlaw.com or on Twitter at @ericpesale.