Kickstarter & The DMCA : A Primer

[dropcap size=big]K[/dropcap]ickstarter is an absolutely massive crowdfunding website which sees thousands of campaigns launched monthly. With so many great ideas filtering through, it only makes sense that a few “bad eggs” will get through too. For example, some project leads may think it’s totally okay for them to appropriate an obviously copyrighted thing, such as The Legend of Zelda or Pokemon. When such transgressions take place Kickstarter may block a campaign from launching entirely – but they will more than likely let it through. Instead, it is the role of the copyright holder to keep an ever-vigilant eye on recent crowdfunding campaigns. After all, as opposed to fan creations on DeviantArt for example, the folks of Kickstarter are (potentially) profiting off something which fundamentally isn’t theirs.

Sometimes the law isn’t quite so black and white. For example, what about images that a project lead finds when they search on Google? Are those free for anyone to use on their campaign page? Many believe these images to be fundamentally free since they’re available for anyone to look at! However, this is rarely the case. This trap is another many fall into without ever intending to, but can result in campaigns being pulled down all the same. Basically, if there is something on your page which you do not actually own (aka: you didn’t create/draw/etc) or specifically get the rights to use, it really should be removed.

So how do content owners/creators tell Kickstarter that someone is using their art/product/name/whatever? They file a copyright claim against the project lead. Once this happens, a project then has a DMCA takedown notice applied to it. DMCA, or the Digital Millenium Copyright Act, is often utilized to stop copyright infringement in an online setting. Once a project receives it, the owner must remove the offending material, file a counterclaim, or see their project blocked from funding. Since many of these claims are the result of inadvertently stealing copyrighted images, it’s not that hard (in theory) to remove them and then get your campaign back in order. Despite this, of 114 existing DMCA takedown claims on Kickstarter thus far, only 15 campaigns have been able to successfully resolve them.

Of course, that doesn’t tell the full story. To really get a taste of the copyright infringement situation on Kickstarter you’ve got to look at a larger breakdown. Many campaigns never do end up trying to resolve anything – mainly because their entire project is framed around content they don’t own. For example, Jazz Jackrabbit Revival was a video game campaign with snazzy enough page… but no rights to actually use Epic Games’ Jazz Jackrabbit name! Video games are far from the only product type suffering from such rampant ignorance of copyright law. Brands such as My Little Pony, Sailor Moon, and a heck of a lot of Marvel properties have also been targeted. This isn’t always the case though. The campaign You Are Now EarthBound by FanGamer revolved entirely around Nintendo’s cult classic video game series but was smart enough about framing itself to avoid copyright complaints.

When a project owner knows they can’t do anything to resolve the complaint they more than likely cancel their project. So far 42 Kickstarters have used the cancel feature. You have probably seen a handful of canceled campaigns on the site. Not all cancellations are due to DMCA takedowns, but those that are do so to hopefully avoid any legal repercussions. Of course, they may still need to resolve the claim even after a project is canceled – so be careful. When a project owner does not cancel their project, resolve the claim, or fix the problem then Kickstarter has the power to suspend a project. If it is suspended that’s basically the end of the line. You’ll receive no more funds. 22 campaigns have been suspended thus far, but that number will certainly grow with time.

But what happens when a copyright holder fails to discover a campaign is infringing on their content in time? They can still file a complaint even if it has been years since the campaign succeeded. However, because of this huge time lag it may be too late to actually stop the product from happening. 14 campaigns were successfully funded and received their funds prior to being called out. When this is the case it’s most likely that some actual legal proceedings will get into motion. In instances such as these you’re apt to see a page such as the one currently on Last Year’s campaign proclaiming: “[Last Year… is the subject of an intellectual property dispute and is currently unavailable.” Currently, Last Year’s developer is in the midst of dealing with corporate lawyers. If and when that is resolved the campaign page will be readily accessible (and searchable via Kickstarter) again.

Some folks may have a bad taste in their mouths about copyright claims thanks to the shotgun approach sites like YouTube utilize. In many instances, people who are not legitimate copyright holders file claims on content which is in and of itself illegal! It appears this is also occurring on Kickstarter, but only in a very minimal fashion. Thus far only 2 campaigns have received DMCA takedown notices from false claims. Both of these were able to come back up after proving that these were false. It remains to be seen if this will eventually become an epidemic like it is on other websites, but if it does here’s hoping Kickstarter will step up to impose penalties for false claims.

Even so, Kickstarter should not lessen the power of DMCA claims either. Why? Because, at their most insidious, some campaigns are actually made by people posing to be a completely different existing company. Many of these companies are not huge and could effectively see their hard work destroyed if someone else is allowed to profit off their work. So far 8 (known) campaigns have attempted to pass someone else’s existing product off as their own. Some go so far as to name themselves the same as companies, copy and paste text from an official website, and at least in one instance they’ve exactly mirrored an older crowdfunding campaign. It’s incredibly worrisome, especially when many of these masquerading campaigns are for great products that would easily succeed without a proper DMCA takedown.

In 2013 there were 40 complaints filed and that number increased to 69 in 2014. Two months into 2015 we now have 5. Kickstarter, and other crowdfunding websites, need to ensure they all have tools to allow for people to exercise control over their copyrights. However, they must also stay vigilant to ensure that people do not begin to exploit such claims.

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Be sure to head check back for more features on Kickstarter and the DMCA.