Etsy's Copyright Conundrum: Legal Loophole Or Liability?

Etsy, the online e-commerce website focusing on handmade goods, crafts, and vintage items, has been criticised for the copyright infringement found in its marketplace shops. The platform has over 5 million sellers, mostly individuals or small businesses without legal counsel, who may be unaware of copyright laws or neglect to do their due diligence when purchasing wholesale goods from countries that don't enforce copyright laws, such as China. As a result, many Etsy stores contain items that are likely cases of copyright infringement, with artists claiming that Etsy sellers are ripping off their designs. While Etsy has become more aggressive in dealing with unscrupulous sellers, the problem is far from resolved. Copyright infringement on Etsy can lead to legal action and penalties, including removing store listings and account suspension. To avoid copyright infringement, sellers should create original designs, use licensed or public domain content, and obtain permission from intellectual property owners before posting third-party designs.

Etsy's role and responsibilities

Etsy is a marketplace for individual third-party sellers who run their own shops, create their own policies, and are responsible for their inventory, shipments, and complying with the law. Etsy provides a venue for sellers, but does not manufacture goods, hold inventory, or ship items on behalf of sellers.

Etsy takes intellectual property rights very seriously and complies with intellectual property laws and industry best practices to maintain the integrity of its creative marketplace. Etsy's Intellectual Property Policy explains how it addresses allegations of infringement, how authorized parties can submit reports of infringement, and how Etsy sellers can respond when their listings or shops are affected by a report.

Etsy reserves the right to disable any listing, shop, or account that violates its Terms of Use, including its Intellectual Property Policy and Prohibited Items Policy. Etsy also reserves the right to take action against abusers of its Intellectual Property Policy or Terms of Use.

Etsy cannot speak on behalf of intellectual property owners, nor is it in a position to offer legal advice or make legal determinations on whether a shop's content infringes on someone else's intellectual property. However, Etsy will remove material cited for alleged intellectual property infringement when provided with a report that complies with its policies.

Etsy strives to respond quickly when it receives a report of intellectual property infringement that complies with its policies by removing or disabling access to the allegedly infringing material. When taking such action, Etsy makes a reasonable attempt to contact the affected member, provide information about the report and removal, and, in cases of alleged copyright infringement, provide information about how to submit a counter notice.

Etsy terminates the selling privileges of members who are subject to repeat or multiple notices of intellectual property infringement. If Etsy believes a member has attempted to open a new shop after the termination of their initial account, it reserves the right to refuse all services to that member. These actions apply to any accounts believed to be associated with or operated by the affected member.

To avoid copyright infringement on Etsy, it is essential to understand intellectual property laws and create original designs. Sellers should also be cautious when using licensed or public domain content, and obtain permission from intellectual property owners before posting third-party designs on their stores.

Copyright law basics

Copyright is a property right that gives authors control, protection, and the ability to exploit their artistic works. It is a form of intellectual property, which also includes trademarks and patents. Copyright law gives creators the exclusive right to reproduce, distribute, and display their work to others.

There are three basic elements that a work must possess to be protected by copyright in the US: originality, creativity, and fixation. Originality means that the work must be the author's own, and not a copy of something else. The US Supreme Court has stated that works only need to have a "modicum" of creativity to be eligible for copyright. Finally, fixation means that the work must be recorded in some way, for example, written down, painted, or stored digitally.

Copyright law in the US is governed by Title 17 of the United States Code. The US Copyright Office provides guides for the general public about copyright law.

Etsy, as a platform, takes intellectual property rights very seriously. They provide tools for reporting copyright infringement in accordance with the Digital Millennium Copyright Act and take action against infringing sellers. Etsy will remove material cited for infringement when provided with a valid report. They also reserve the right to disable any listings, shops, or accounts that violate their policies, including copyright infringement.

To avoid copyright infringement on Etsy, it is important to understand intellectual property laws and create original designs. Sellers are responsible for ensuring they have the necessary rights to their content and are not infringing on anyone else's intellectual property rights.

Suing for copyright infringement

Understanding Copyright Infringement

Copyright infringement occurs when a copyrighted work is distributed, copied, publicly displayed, performed, or used to create a derivative work without the copyright owner's permission. This can include reproducing, adapting, distributing, or publicly performing the copyrighted work without authorisation. It's important to note that copyright law protects the expression of an idea rather than the idea itself.

Types of Copyright Infringement

There are two types of copyright infringement: primary and secondary. Primary infringement involves a direct violation by the defendant. Secondary infringement occurs when someone facilitates or contributes to another person or group infringing on a copyright. Contributory infringement occurs when someone knowingly induces, causes, or materially contributes to copyright infringement. Vicarious infringement occurs when a superior party, such as an employer, profits from the infringement and has supervisory authority over the direct infringer.

Evidence of Copyright Infringement

To prove copyright infringement, the plaintiff must demonstrate two key elements: ownership of a valid copyright and infringement of that copyright by the defendant. This can be established through circumstantial evidence, such as showing that the defendant had access to the original work and that there are substantial similarities between the original and the infringing work.

Legal Process of Suing for Copyright Infringement

The legal process for suing typically begins with the copyright holder sending a cease and desist letter to the infringing party. If this does not resolve the issue, the copyright holder can file a lawsuit in federal district court. The plaintiff must provide evidence of their valid copyright, such as registration with the Copyright Office, and demonstrate how the defendant infringed upon their exclusive rights.

Remedies for Copyright Infringement

If the court finds the defendant liable for copyright infringement, several remedies are available to the plaintiff. These can include injunctions to prevent further infringement, monetary damages, and attorney's fees. The specific remedies will depend on the nature and extent of the infringement.

Defenses Against Copyright Infringement Claims

It's important to note that there are several defenses that the defendant can raise in response to a copyright infringement claim. These include the statute of limitations, lack of knowledge that the work was copyrighted, fair use, independent creation, and license or permission to use the copyrighted work.

Takedown requests

Etsy takes intellectual property rights very seriously and complies with intellectual property laws and industry best practices to maintain the integrity of its creative marketplace. Etsy provides tools for reporting copyright infringement in accordance with the Digital Millennium Copyright Act (DMCA), and it takes appropriate action against infringing sellers.

Etsy strives to respond quickly when it receives a report of intellectual property infringement that complies with its policies. When Etsy removes or disables access in response to a report, it makes a reasonable attempt to contact the affected member, providing information about the report, the removal, and how to submit a counter notice. Etsy may also provide a copy of the infringement report, including the name and email address of the reporting party, to the affected member.

To submit a report of alleged infringement against Etsy shop listings, you can use the Etsy Reporting Portal. This is the easiest way to report alleged infringement to Etsy and its Designated Agent under the DMCA and other intellectual property rights. If you are unable to use the Etsy Reporting Portal, you can read more about Etsy's DMCA notice requirements and Designated Agent on their website. Etsy may request additional information before processing a report, such as a letter of authorization from the rights owner, identity verification of the reporting party, or other documentation regarding the claimed right.

In accordance with the DMCA, Etsy accepts counter notices for US-based copyright infringement reports only. When Etsy receives a DMCA counter notice, it will provide a copy of the counter notice to the original complaining party. The removed material may be replaced or access to it may be restored within 10 business days after the counter notice is processed, unless the copyright owner files an action seeking a court order restraining the allegedly infringing party from relisting the items or a qualifying action with the Copyright Claims Board (CCB), and informs Etsy of this action.

Etsy only accepts withdrawals of infringement reports directly from the intellectual property owner or authorized representative who submitted the claim. The withdrawal must clearly state that it is a formal withdrawal and sufficiently identify the member and/or material (such as by providing the username, shop name, and Etsy listing URLs). Once Etsy receives a formal withdrawal of an infringement report, it will contact the withdrawing party to confirm receipt and will notify the affected member of the withdrawal. Please note that infringement matters are reviewed on a case-by-case basis, and withdrawals do not guarantee changes to a member's shop status.

Monitoring and prevention

Etsy has implemented several measures to monitor and prevent copyright infringement on its platform. Firstly, they have developed tools for reporting copyright infringement, enabling rights holders to submit reports through the Etsy Reporting Portal or the Etsy Reporting Form. These tools allow rights holders to provide detailed information about the alleged infringement, including the type of intellectual property, infringing materials, and their contact information.

To ensure the effectiveness of the reporting system, Etsy may request additional information, such as authorisation from the rights owner or identity verification of the reporting party, before processing a report. Etsy also reserves the right to reject reports that are deemed false, fraudulent, or submitted in bad faith.

Upon receiving a valid report, Etsy strives to respond promptly by removing or disabling access to the infringing material. They also make a reasonable attempt to contact the affected seller, providing information about the report, removal, and, in cases of alleged copyright infringement, instructions on submitting a counter notice. Etsy may also provide a copy of the infringement report, including the name and contact information of the reporting party, to the affected seller.

To further prevent copyright infringement, Etsy has established its Intellectual Property Policy, which outlines its role in addressing allegations, the process for reporting infringement, and the consequences for non-compliance. According to the policy, Etsy reserves the right to disable any listing, shop, or account that violates its Terms of Use, including the Intellectual Property Policy and the Prohibited Items Policy. Etsy also takes action against abusers of its Intellectual Property Policy and Terms of Use, emphasising its commitment to maintaining a fair and creative marketplace.

In addition to these measures, Etsy utilises cookies and similar technologies to enhance site security and protect user information. These technologies enable basic site functions, secure transactions, and account login, while also remembering user preferences, analysing site traffic, and providing personalised content and recommendations. By leveraging these technologies, Etsy aims to create a safer and more personalised experience for its users.

To summarise, Etsy addresses copyright infringement through a combination of reporting tools, policies, and technological solutions. By empowering rights holders to report infringements, enforcing policies, and leveraging technology, Etsy strives to create a platform that respects intellectual property rights and fosters creativity.

Frequently asked questions