Season 1, Episode 43
Who Owns Your Copyright?
[00:00:07] Chris: Hello, Amazon sellers. This is Chris McCabe. Welcome back to Seller Performance Solutions. I’m of course a former Amazonian, Seller Performance teams and I’m here with fellow e-commerceChris consultant,Leah McHugh. Leah, how are you doing?
[00:00:26] Leah: Good. Thanks. How are you, Chris?
[00:00:27] Chris: Good. And also Leah’s worked a lot with brands, managing startups here in the Boston area and Amazon businesses that have the types of problems we hear about from brands these days. Sometimes brands don’t think of everything before they go to sell on Amazon. I’m sure we both seen that in various permutations in the past, but what we’ve seen recently is copyright complaints. A lot of brands still haven’t copyrighted their content. Be it images or other kinds of written content and their attackers, their competitors are seeing that as a vulnerability and are reporting them for intellectual property infringements.
[00:01:02] Leah: This is one of those things where imagine if those people used this creativity for good instead of for finding loopholes to live mess with their competitors. Cause that’s like a fairly creative thing to think of that most people aren’t copywriting all of their images and texts. So if you do it first on somebody else’s content, you can take them down and imagine if they just use that creativity to make better content.
[00:01:26] Chris: It’s a well-known avenue of attack by the way, Amazon knows all about this. Amazon has been drowning in fake copyright complaints, so it’s not like this is news to them. This isn’t the first crime wave of fake copyright complaints they’ve been through. But just for a little bit of background, from some examples, we’ve seen competitors create a page elsewhere on the internet, like on Shopify or something, and they use your images and they use your content a nd then they report it to Amazon showing that other page they created, which of course they created long after you have your images on your Amazon page or on your website. So they’re using that as proof quote, unquote, proof that you have copied their copyright, lots of sellers are having trouble with this.
[00:02:06] Leah: I thought they were also registering the copyright before reporting it to Amazon?
[00:02:08] Chris: Right? I mean, number one way to deal with this of course is to make sure anytime you use an image on Amazon, you do have it copyright protected. And you and I were talking about implied copywrite earlier.
Yeah, well, so it is implied. It’s just registering it makes it official. So I guess nobody’s doing due diligence when people register their copyright to see that it is actually their content, which is interesting because I imagine there’s a lot of content on the internet that hasn’t been copyrighted.
Right. And I saw chatter about this and one of the Facebook groups the other day for sellers and people were saying, well, show them proof that you took these photos yourself, show them the receipt from the photographer. There was all this kind of other stuff. And I’m sure you can try those things. But bottom line is don’t have an image on Amazon without copywriting it first, you’re just opening yourself up to manipulation and attack and having Amazon have to sift through the truth, separating, you know, fake IP claims from the truth. And often they can’t do that. They’re looking at these so quickly. They’re not processing these claims properly. Lots of mistakes, lots of errors. And you spend a lot of time with DMCA counter notices, right?
[00:03:14] Leah: Well, I think they also don’t want to get in the middle of a legal battle. So if somebody is showing that the copyright is registered to them, they’re not going to go and look and prove that wrong. It’s not their job and they’d probably be bad at it anyway.
[00:03:28] Chris: They wouldn’t handle it right anyway and it’s not what they’re supposed to be doing as the marketplace or the platform. You can file a DMCA counter notice, which starts the 10 day clock ticking supposedly starts the 10 day clock. So that you’d lose the listing for a max of 10 days.
The problem is Amazon often doesn’t contact the other party, the fake party and they’re not going to respond any way. Right? If they only get 10 days out of it they know, it’s a black hat tactic. They don’t care. That’s what they’re doing. Just trying to win whatever sales they can for that period.
But the problem is Amazon sometimes waits 10 days then contacts them. Then it’s 10 days on top of that. You don’t want to go through that misery. We had people in Q4 and the holiday that went through that and they lost boatloads of money simply because they hadn’t copyrighted their material.
[00:04:11] Leah: And I will say the possible silver lining here is that we are seeing Amazon taking more action against people who are filing false IP claims. We are actually starting to see a bit more movement there of people being restricted from things like brand registry or restricted from filing these claims. So, I mean, you know, they’re not doing it very well or very consistently, but they are starting to take action against these false claims that they’re drowning in.
[00:04:40] Chris: For sure. And we’ll be doing another podcast episode about some of the consequences of submitting fake IP claims that we’ve seen. Reminding everyone that we’re not intellectual property attorneys, we’re not attorneys, we’re commenting mostly on Amazon’s actions, seller behaviors, and mistakes or oversights that sellers and brands are doing that could cost them a lot of money.
That being said, Yes, a lot of parties, variety of parties out there are recommending submitting counterfeit complaints, right? Even when there’s no proof of counterfeit . We’ve seen some fake copyright, fake trademark just for sellers to try to get an unauthorized seller off their listing. There are real consequences for that including revoking brand registry, account suspensions. What we’ve seen various agencies come to us, looking for help that have been kind of caught in this crossfire.
[00:05:29] Leah: Yeah. We’ve also seen people being blocked from enrolling any brands going forward as well because of bad actions in the IP enforcement previously.
[00:05:39] Chris: That’s the scariest thing I’ve seen so far and also the accounts that are being blocked for related. You’re related to an account that was doing that, but simply because you appear related from sign-ins, shared addresses, phone numbers, shared whatever. So anyone who’s managing a bunch of businesses faces that, but it is scary that they might just say, oh, you can’t register any other brands. We don’t care if you’re an agency, a seller, we don’t care if you’re handling a hundred accounts or one you’re no longer can participate in brand registry. That’s frightening. And if that’s something you lose, which is huge, all because you say you mistakenly submitted IP claims, but then they ended up being considered fake by Amazon. That’s something really avoidable.
[00:06:21] Leah: Yeah. Well, and also claiming somebody else’s IP is your own. You’re getting into lawsuit territory there as well.
[00:06:27] Chris: Well, it’s code of conduct., it’s by Amazon.
[00:06:31] Leah: I mean, seller versus seller suing, not Amazon.
[00:06:35] Chris: The seller who’s falsely accused can see you for damages. That could include lost sales on Amazon, could include a lot of things I’d imagine.
Also Amazon impounds inventory if they think there’s a just cause that it’s counterfeit.
[00:06:49] Leah: And they keep your money.
[00:06:51] Chris: Well, they keep your funds. They might suspend the whole account, not just the ASIN.. You can’t do a removal order and get that inventory out. There are so many consequences to fake IP claims and Amazon’s already drowning in fake IP claims from e mails that bounce, from somebody who’s not even a seller, just a complete fake party.
Interestingly, we’ve also seen people putting a fake letter on somebody else’s legal letterhead and they had a law firm’s letterhead and then the law firm was contacted and they’re like, we had nothing to do with this.
We’ve seen a lot of that. Where the law firm denies that they have anything to do with it. And then they actually have to write a letter that goes to Amazon that says we did not submit this IP infringement. So sometimes you can tell looking at the email address, they’ve tweaked the domain name a little bit.
Amazon’s not necessarily going to catch that on the first try. So just keep your eyes out for that. And again, best way to protect yourself, have the documentation in hand and ready for when you submit an appeal, contesting the copyright suspension of your listing, have your copywrite documentation ready to go the same way that you would a trademark. registration or certification.
[00:08:02] Leah: Whatever the IP may be.
Yes. One of our big things for 2022 is be prepared. Right? Be ready for anything before it happens and before you have to appeal and scramble to do something, because you’ve been suspended on a listing.
So add to the already lengthy, Amazon seller checklist, copyright all your content.
[00:08:24] Chris: And any questions on that let us know. Thanks again for listening today and we’ll have lots of other lovely, wonderful tidbits throughout 2022, in terms of what to do to protect your brand on Amazon in a very perilous, crazy world. Sometimes where the marketplace presents all sorts of surprises.
[00:08:41] Leah: Keeps it interesting.
[00:08:43] Chris: It keeps it interesting. Thanks again. Take care.
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