App Store Lawyer – Dealing with Apple App Store Legal Issues & Competitor Complaints involving music, apps, podcasts and more.
Mobile applications are all the rage today. There is literally millions of dollars to be made on the right application. However, with opportunity usually comes the potential for dispute and for someone to claim you are stealing their idea, their date, or their intellectual property. When disputes arise, we can help.
How to file a takedown notice with Apple App Store
According to their website:
“If you believe that an application or Search Ad available in the App Store violates your intellectual property rights, you can use this form to submit a claim to the App Store Legal Team. Please note: Apple does not investigate claims regarding branded terms used as Search Ads keywords. If you are looking for the form to submit a claim for any other type of content available on the iTunes Store, please visit here.
Apps on the App Store are made available by third party providers. Once you have identified the app and described the alleged infringement on the following pages, we will respond via email with a reference number and will put you in direct contact with the provider of the disputed app. Any further contact with the App Store Legal team should be made via email and should include the reference number in the subject line.”
“Please make sure that your submitted dispute complies with the notice requirements of the Digital Millennium Copyright Act (DMCA), which this form is designed to facilitate.”
What to do when a competitor keeps bullying you and forcing takedowns
It is likely that Apple will concede to most takedown requests for the simple reason that they do not want to be sued for copyright or trademark infringement, or be held liable in a California right of publicity dispute (which carries attorney fees). They are a “deep pocket” Defendant and their liability could be huge. So their safe bet is to just agree to the takedown under the “safe harbor” DMCA law and let the parties dispute it out.
But don't forget, there is a “bad faith” bully law that can be used to stop an overly aggressive competitor who continues to insist that you takedown your app from the store. They may be trying to force you into a licensing deal, and you may want to discuss the copyright DMCA bad faith bully provision we have discussed in this blog.
To sum up the law of DMCA bad faith under 17 U.S.C. 512(f):
(f) Misrepresentations.—Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” So in other words, if you have a competitor reporting you to Apple knowing there is no real infringement claim, and if you can prove that, then you may be able to recover damages from them, but filing a federal court lawsuit would be required. A DMCA 512(f) “Bad Faith” Plaintiff will likely have to show “actual knowledge” on the part of the copyright holder (that there was no infringement). “Though Lenz argues Universal should have known the video qualifies for fair use as a matter of law, we have already decided a copyright holder need only form a subjective good faith belief that a use is not authorized. Rossi v. Motion Picture Ass'n of Am. Inc., 391 F.3d 1000 (9th Cir.2004). In Rossi, we explicitly held that “the ‘good faith belief' requirement in § 512(c)(3)(A)(v) encompasses a subjective, rather than objective standard,” and we observed that “Congress understands this distinction.” Id. at 1004. We further held: When enacting the DMCA, Congress could have easily incorporated an objective standard of reasonableness. The fact that it did not do so indicates an intent to adhere to the subjective standard traditionally associated with a good faith requirement..in § 512( f), Congress included an expressly limited cause of action for improper infringement notifications, imposing liability only if the copyright owner's notification is a knowing misrepresentation. A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.” See Lenz v. Universal Music Corp., 815 F.3d 1145, 1153–54 (9th Cir.), cert. denied, 137 S. Ct. 416, 196 L. Ed. 2d 293 (2016), and cert. denied, 137 S. Ct. 2263, 198 L. Ed. 2d 698 (2017). We talked more about this case in this blog. In another 512(f) case a Federal court in the Northern District of California held: “The Court concludes that neither standard is appropriate. A requirement that a party have an objectively measured “likelihood of success on the merits” in order to assert claims of copyright infringement would impermissibly chill the rights of copyright owners. At the same time, in requiring a showing of “knowing material misrepresentation,” Congress explicitly adopted a standard different from that embodied in F.R.C.P. Rule 11, which contains a variety of other requirements that are not necessarily coextensive with those set forth in section 512( f). The Court concludes that the statutory language is sufficiently clear on its face and does not require importation of standards from other legal contexts. A party is liable if it “knowingly” and “materially” misrepresents that copyright infringement has occurred. “Knowingly” means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations. See Black's Law Dictionary (8th ed.2004) (definitions of “knowledge,” in particular, “actual” and “constructive” knowledge). “Material” means that the misrepresentation affected the ISP's response to a DMCA letter. “ See Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1204 (N.D. Cal. 2004)
App Store in the News
- Apple to start report government takedown requests
- Apple issues takedown notice after iBoot source code leaks
To discuss your case in confidence call us at (877) 276-5084. We can usually structure a low flat rate legal fee for most disputes. If bad faith litigation is required we may be able to take the case on a full or partial contingency fee.