Attorney Steve® Copyright Infringement Essentials - OpenSea NFT Copyright Legal Issues

Introduction

I just purchased an NFT on OpenSea paying $75.00 in ETH using my Metamask wallet.  It was a quick and seamless tranaction.  Howver, like the law geek that I am, I decided to take a peak at their terms of service wondering what happens if I buy an NFT that includes Intellectual Property the seller does not actually own?  Could that put me at risk as the buyer?  Here are some of the basic terms I found.  If you need help with an OpenSea dispute (DMCA disputes), call us at (877) 276-5084.

OpenSea's policy regarding copyright

Here is what their policy says:

Section 7 - Intellectual Property Rights

You are solely responsible for your use of the Service and for any information you provide, including compliance with applicable laws, rules, and regulations, as well as these Terms, including the User Conduct requirements outlined above.

By using the Service in conjunction with creating, submitting, posting, promoting, or displaying content, or by complying with OpenSea's metadata standards in your metadata API responses, you grant us a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any content, including but not limited to text, materials, images, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data, or otherwise, that you submit or post on or through the Service for our current and future business purposes, including to provide, promote, and improve the Service. This includes any digital file, art, or other material linked to or associated with any NFTs that are displayed on the Service.

OpenSea does not claim that submitting, posting, or displaying this content on or through the Service gives OpenSea any ownership of the content. We're not saying we own it. We're just saying we might use it and show it off a bit.

You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any content that you create, submit, post, promote, or display on or through the Service. You represent and warrant that such content does not contain material subject to copyright, trademark, publicity rights, or other intellectual property rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant OpenSea the license described above, and that the content does not violate any laws.

OpenSea will comply with a DMCA takedown request

If you are tying to sell NFT's with infringing content, (ex. a buyer seeking to resell the NFT), understand OpenSea complies with the Digital Millenium Copyright Act ("DMCA") and will engage in the takedown notice / counter-notification process.  Here is what their policy indicates:

1. OpenSea will take down works in response to Digital Millennium Copyright Act (“DMCA”) takedown notices and/or other intellectual property infringement claims and will terminate a user's access to the Service if the user is determined to be a repeat infringer. If you believe that your content has been copied in a way that constitutes copyright or trademark infringement, or violates your publicity or other intellectual property rights, please fill out our form here or you may submit written notice to our designated copyright agent at:

   Ozone Networks, Inc.
   Attn: Legal Department
   228 Park Ave South # 22014
   New York, NY 10003
   Email: [email protected]
   Phone: (347) 641-9373

   For us to process your infringement claim regarding content on the Service, you must be the rightsholder or someone authorized to act on behalf of the rightsholder. We encourage you to use our form to help ensure the requisite information is included in your notice. If you choose to write to us by e-mail or physical mail instead, your notice must include:

   • Identification of the copyrighted work(s), trademark, publicity rights, or other intellectual property rights that you claim is being infringed;
   • Identification of the allegedly infringing material that is requested to be removed, including a description of the specific location (i.e., urls) on the Service of the material claimed to be infringing, so that we may locate the material;
   • Your contact information – at a minimum, your full legal name (not pseudonym) and email address;
   • A declaration that contains all of the following:
   • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property rights owner, its agent, or the law;
   • A statement that the information in the notice is accurate; and
   • A statement under penalty of perjury that you are authorized to act on behalf of the intellectual property owner of the intellectual property that is allegedly being infringed.
   • Your physical or electronic signature (of your full legal name).

   Please note that we will forward your notice of intellectual property infringement, including your contact information, to the party who will have their content removed so they understand why it is no longer available on OpenSea and can also contact you to resolve any dispute.

Arbitrations are help in JAMS New York per their terms of service

If there are disputes, their service calls for arbitration of disputes as follows:

• Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with OpenSea and limits the manner in which you can seek relief from us. This section does not govern disputes between users or between users and third parties.. OpenSea does not provide dispute resolution services for such disagreements and the parties must resolve those disputes directly.
• Applicability of Arbitration Agreement. You agree that any dispute, controversy, or claim relating in any way to your access or use of the Service, to any products sold or distributed through the Service, or to any aspect of your relationship with OpenSea, will be resolved by binding arbitration, rather than in court, including threshold questions of the arbitrability of such dispute, controversy, or claim except that (1) you or OpenSea may assert claims in small claims court, but only if the claims qualify, the claims remain only in such court, and the claims remain on an individual, non-representative, and non-class basis; and (2) you or OpenSea may seek injunctive or equitable relief in a court of proper jurisdiction if the claim relates to intellectual property infringement or other misuse of intellectual property rights.
• Dispute resolution process. You and OpenSea both agree to engage in good-faith efforts to resolve disputes prior to either party initiating an arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to: OpenSea, Attn: Legal Department, 228 Park Avenue South, #22014, New York, NY 10003. Both parties agree to meet and confer personally, by telephone, or by videoconference (hereinafter “Conference”) to discuss the dispute and attempt in good faith to reach a mutually beneficial outcome that avoids the expenses of arbitration or, where applicable, litigation. If you are represented by counsel, your counsel may participate in the Conference as well, but you agree to fully participate in the Conference. Likewise, if OpenSea is represented by counsel, its counsel may participate in the Conference as well, but OpenSea agrees to have a company representative fully participate in the Conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process and Conference required by this paragraph. If the parties do not reach agreement to resolve the dispute within thirty (30) days after initiation of this dispute resolution process, either party may commence arbitration, file an action in small claims court, or file a claim for injunctive or equitable relief in a court of proper jurisdiction for matters relating to intellectual property infringement, if the claims qualify.
• Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding after participating in the dispute resolution process, you must send a letter requesting arbitration and describing your claim to our registered agent at OpenSea, Attn: Legal Department, 228 Park Avenue South, #22014, New York, NY 10003. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and the JAMS Consumer Minimum Standards then in effect; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards then in effect. JAMS's rules are available at jamsadr.com or by calling JAMS at 800-352- 5267.

Contact a Copyright Infringement Law Firm

NFT trading is a new innovation.  It can seem fun, but there are bound to be legal issues that arise requiring the assistance of experience IP counsel.  Call us to discuss your issue.  Note:  We are not licensed in New York but we can represent Calfironia and Arizona clients.  Feel free to call (877) 276-5084 or fill out the contact form.