Intellectual Property Enforcement in the Metaverse, Part 1

For creators who seek to protect their intellectual property (IP), the idea of enforcing intellectual property rights in the metaverse may initially appear to be daunting. After all, given the metaverse's association with blockchain and land ownership, it is easy to think of enforcement of intellectual property rights in the metaverse as being very different from enforcement on traditional media platforms such as YouTube. But is enforcement of intellectual property in the metaverse all that different from enforcement outside the metaverse? The answer is complicated and depends to a large extent on the Terms of Service that different media platforms and metaverse companies implement.

In Part 1 of this three-part blog series, we examine how intellectual property rights online are normally enforced and how that model may translate to the metaverse. In Part 2, we will focus on the implications for IP enforcement of certain metaverse properties linked to the blockchain. We will conclude in Part 3 with a bigger-picture analysis of the future of IP enforcement in the metaverse.

Enforcement Outside the Metaverse

Enforcement outside the metaverse is governed by a mix of self-policing based on various platforms' Terms of Service, lawsuits seeking the removal of infringing content and international dispute resolution bodies. Different dispute resolution procedures are available for different types of infringement. For example, to contest the use of another's trademark in a domain name, the trademark owner can submit a Uniform Domain Name Dispute Resolution Policy (UDRP) complaint to the World Intellectual Property Organization (WIPO). Registrars must require all website owners who register domain names with them to agree to the UDRP dispute resolution terms, and the registrars have the power to cancel the domains and transfer them to the rightful trademark owner if the WIPO administrative panel determines the domain name is confusingly similar to another's trademark and was registered in bad faith and without any legitimate interest in the domain name. But this procedure is available only for trademark infringement in a domain name (i.e., the URL). For trademark infringement (and copyright infringement) occurring within the pages of a website, the trademark or copyright owner can request removal from the website owner, the website's host or the platform (for third-party content), according to procedures often laid out in each entity's Terms of Service. If the website owner, host or platform elects not to remove the content, then litigation is likely the only remaining option.

For copyright infringement (but not trademark infringement), the Digital Millennium Copyright Act (DMCA) creates a safe harbor that limits liability for service providers who, inter alia, "respond[] expeditiously to remove, or disable access to … material that is claimed to be infringing or to be the subject of infringing activity." (17 U.S. Code Section 512). The DMCA incentivizes service providers to promptly remove content infringing another's copyright and is likely the catalyst for some service providers' robust Terms of Service and self-policing enforcement mechanism. For example, YouTube's Terms of Service prohibit the uploading of content that violates intellectual property rights, gives YouTube the ability to remove purportedly offending content, provides a designated agent for the submission of copyright removal requests and allows for the termination of account holders who repeatedly infringe.

For website operators who are themselves directly infringing another's copyright or trademark (as opposed to third-party content posted on a platform such as YouTube or Facebook), the rights owner can report the infringement to the website's hosting company. But often the only effective means of removing such content is by filing a lawsuit and obtaining an injunction from a court ordering that the website host remove the content.

Enforcement in the Metaverse

Looking inside the metaverse, things are not necessarily that different. Here, it is important to note that not all metaverses are associated with the blockchain and land ownership. Meta's Horizon Worlds, for instance, is a metaverse that is not on the blockchain and also doesn't provide for land ownership in its metaverse. And at least based on the Terms of Service for Horizon Worlds, enforcement of intellectual property in its metaverse looks a lot like enforcement of intellectual property on the outside. Broadly speaking, Meta's Terms of Service, which covers products such as Horizon Worlds, similarly prohibits content that infringes on intellectual property rights and gives Meta the sole discretion to remove content that it determines to be in violation, providing a Designated Agent for submitting notification of any infringement (including both copyright and trademark). It additionally allows Meta to disable or delete the accounts of persons who repeatedly breach such violations. So, at least in its general contours as it relates to intellectual property enforcement, Meta's Terms of Service look fairly traditional.

In Part 2 of this blog series, we will show how adoption of the blockchain by some metaverse properties may disturb this status quo of IP enforcement.