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Analyzing GoPro’s DMCA Controversy

Analyzing GoPro’s DMCA Controversy

GoPro LogoYesterday, word broke that GoPro, the makers of the popular camera line, filed a Digital Millennium Copyright Act (DMCA) takedown notice against DigitalRev, a site that serves as both a store and a community for digital cameras.

What exactly was the target of the takedown notice is the subject of debate right now, but according to the version of the letter posted on DigitalRev’s site, the notice was targeting a review they had done of the GoPro Hero3 camera and specifically mentioned the trademarks “GoPro” and “Hero”.

When DigitalRev posted about the takedown notice the matter began to go viral. The problems with the notice, as presented, were easily spotted, even by those not familiar with the DMCA. First, the notice only mentioned trademark issues, which aren’t covered under the DMCA and, second, using a trademark name in a review is not a use in commerce and is not an infringement.

However, GoPro quickly responded to the uproar but only served to confuse things more. According to a GoPro representative, the review was not the target of the DMCA notice, but rather, revolved around the fact DigitalRev is not an authorized reseller and was not using authorized images and also using trademarks incorrectly.

But this only served to raise more questions than answers. If the issue at hand was the store, why was the review mentioned at all? Further, issues of using “unapproved” images and mistakenly using trademarks is, again, not a copyright issue and, most likely, isn’t against the law to begin with.

DigitalRev responded to GoPro’s Response raising many of those same issues. Noting that the DMCA notice clearly centered on the two trademarks and made no mention of images and noting that being an unauthorized reseller is legal under the doctrine of trademark exhaustion, more commonly called the first sale doctrine in the U.S.

So what happened and what can others learn from this ordeal? While the dust is still settling, there are a few things that are abundantly clear.Continue Reading