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Danny Friedmann

The norms of the internet users/community have caused a great deal of problems. It is preferable to use the instrumentality of the law to impose a policy choice that benefits all stakeholders. There are eight elements of the legal conflict between trademark holders, social media providers and internet users: - a perception by internet users, social media providers and image search engines that the trademark logo is without protection; - the ample access to the unauthorized use of the trademark logo; - the proliferation, scale and speed of the unauthorized use of the trademark logo; - the permanence of the uploaded unauthorized trademark logos on the internet; - the uncertain boundaries of the trademark logo; - stakeholders that are either overwhelmed or ignorant to the infringement; - a loss of control for trademark holders; and - the emergence of new technology such as cloud computing.
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Danny Friedmann

Conclusions.
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Danny Friedmann

Until the law will be amended to include a moral right of integrity for the trademark logo, this book suggests the implementation of proactive solutions in the walled gardens of social media as a testing ground for potential legislation, using pre-upload filtering. This automated solution is scalable, makes intellectual property protection and enforcement not only effective but also more calibratable to social policy goals and will inevitably lead to an algorithmic justice.
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Danny Friedmann

The safe harbour provisions were introduced before the ascent of one subspecies of the OSP: the social media provider. An additional advantage of the concept of the safe harbour provisions, it was assumed, would be that they would not have to filter inappropriate content, so that they could primarily focus on their core activities, without having to fear being sued for intellectual property infringements. However, this idea does not correspond well with reality. For social media providers the risks of being sued by content holders have become substantial, because of the massive amount of user-generated content they are hosting. Social media are already swamped by notice and takedown requests by alleged content holders. Contributory liability, inducement as part of contributory liability and vicarious liability are grounds that can pierce the veil of the safe harbour provisions and enable trademark holders to sue the OSPs, including social media providers. OSPs in general and social media providers in particular are not incentivized to proactively monitor for infringing material. The efficacy of self-regulation has been insufficient so far.
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Danny Friedmann

The trademark logo can be seen as the personification of the trademark holder, and one can argue that the stability of the trademark logo is not only in the interest of the trademark holder but also of society at large. Two premises for any solution are that first the enforcement should be made automatic, since litigation on a case-by-case basis is not scalable, and second that the safe harbour provisions for online service providers, which aggravate the problem, should be substituted for strict liability.
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Danny Friedmann

The trademark logo can be seen as the personification of the trademark holder. One can argue that trademark dilution already provides a kind of moral right of integrity for the trademark logo. However, this right is limited to trademark logos that are considered famous or have a reputation, and, moreover, that are used in a commercial way. This book argues that trademark law should be expanded with the moral right of integrity for the trademark logo.
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Danny Friedmann

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Danny Friedmann

Social media providers, Facebook, Twitter, YouTube, Flickr and Pinterest, are strict when protecting and enforcing their own intellectual property rights. The contrast of their stance in regard to the infringement of intellectual property of trademark holders by internet users is salient. Social media providers invite internet users to share content, and once they do, they appropriate the intellectual property rights, irrevocably and perpetually. Anonymity, pseudonymity and privacy already seem to get weaker in society while they can, under some circumstances, be beneficial to society. Therefore this book does not advocate any real-name policy for its proposed solution, a fortiori, since real-name policies are costly and burdensome to implement and enforce. Disintermediation had led to a massive expression by internet users. The drawback is that, after the middle person is cut out of the equation, this is not necessarily conducive for the quality of the content. A side effect of the lack of monitoring, quality control and editing has led to a massive scale of online intellectual property infringements. Legal persons might not have a face of flesh and bones and sometimes they even have the same name if they are active in another product or service category. So the trademark logo can be crucial to distinguish products or companies from each other, a distinct appearance with which they can link themselves to the outside world.
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Danny Friedmann

Understanding the context in which the legal conflict takes place, the trademark law in the US and EU, is crucial to find a solution. As one appreciates the intricacies of these legal systems under which the trademark logo on social media should be protected and enforced, one can see that these laws are ill-equipped to address the problem. This is exacerbated by international treaties such as the Berne and Paris Conventions, partly incorporated by TRIPS and interpreted by the WTO panel reports, that give the US and EU the bandwidth within which these jurisdictions can operate.
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Danny Friedmann