Why DMCA and trademark protection is a no-brainer: the Darkest Dungeon scam

I just saw an interesting story on Eurogamer: the developer of Darkest Dungeon, a popular new indie game, has hit out at a clearly fake version of its game on the Windows Games Store.  The developer is said to have reached out to Microsoft for help.  I’m sure they will oblige in due course.

I thought I’d take this opportunity to write a quick post because what you probably WON’T read about is what Microsoft, or any other platform which is said to be hosting fake/fraudulent/illegal/infringing content (“content” btw might be games, film, audio, artwork – anything) might say in response to the developer:

(1) Where is the content on our platform – can you show us?

This is the easiest bit – when you contact the platform, make sure that you can identify easily how the platform is involved.  URLs, screenshots, that kind of thing. Make their life easy for them.

(2) Can you show US that you actually own the real version?

This is harder.  How can the real owner show that it actually, legally owns the content it is defending?  What tends to happen is that the platform will want evidence of legal rights.  Copyright might be one way of doing it, but many platforms won’t accept that because it can’t be independently verified, unless perhaps you’re able to show that you have registered your copyright at the US Copyright Office, but that doesn’t happen so often online (see here btw for my beginner’s guide to copyright and games).

In practice, a platform will often ask for/settle for proof that you own registered trademarks in the product, because they can be independently verified and provide a strong legal argument in your favour against the content you’re challenging (here’s my beginner’s guide to trademarks and games).  I’ve had several situations in which it has been made much easier for my client to take down content using its registered trademark and conversely I’ve had situations where the platform sat on its hands until we could get registered trademarks to use against the challenged content.

Beyond that, you can *try* things like domain ownership or soft proof (which is basically you arguing “seriously, I obviously do own this content, there’s no way you can think otherwise”), but don’t hope for instant (or any) success.

(3) Why should we take it down?

As far as the platform is concerned, why should it care whether someone rips you off or not?  Answer: under most legal systems, particularly in the US and the EU, the platform itself could be liable in a lawsuit by you against it for any losses which you have suffered, because it can be liable as the ‘host’ of the content.  Even if the actual loss might not be that high in financial terms, it’s still an administrative and PR hassle to deal with.

What often happens in practice therefore is that online platforms have a ‘DMCA’ or ‘Copyright’ policy which basically explains how they will take down content if you notify them that it’s naughty for one reason or another.  This all goes back to an early Noughties piece of US legislation called the Digital Millenium Copyright Act, which protects online platforms if they take down infringing content expeditiously once they are first notified of it.  Most developed countries now have something like it.

The DMCA and similar legislation elsewhere is your best friend if you feel that your content is being ripped off by someone else on a recognised online platform, because it provides an administrative mechanism under which you can have the content taken down relatively quickly if you have the right evidence.

So, what do you do if someone rips off your content on an online platform?

(1) Get evidence that the content is actually on the platform – e.g. URLs, screenshots

(2) Make sure you have legal rights in the content itself – ideally registered trademarks

(3) Use the platform’s DMCA/takedown process

 

2 comments

  1. Good practical summary above.

    I would like to add that the biggest problem with DMCA takedowns is that the ‘naughty person’ can object to the takedown and have the content reinstated. Less than ideal for most as you would then need to consider taking legal action against them. However, it is still a good deterrent.

    There are also potential rights you can assert such as Passing Off in the UK or similar unfair competition laws in other EU countries. But these have the same weaknesses as copyright mentioned above as you have to prove it, rather than just provide a registration.

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