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Chapter 5
Within its support pages, Google posts its policy for reporting copyright infringement for websites
utilizing its Google AdSense service. 100 Google expressly reserves the right to terminate an AdSense
publisher’s participation in the program if it receives a notice or otherwise has reason to believe
that the publisher’s website is infringing. 101 While Google’s AdSense policy demonstrates progress,
many in the content community have complained that Google does not do enough to cut off
advertising services for websites that facilitate piracy or counterfeiting. 102 What also remains
unclear is whether and how Google plans to expand its AdSense policy across all of the products
and services it owns in the display ad ecosystem. 103
Expanding best practices beyond networks and exchanges to cover all relevant players in the
advertising ecosystem, establish measures to prevent advertisements from appearing on PFWs in
the first place, and provide a streamlined referral processes to report advertisement-supported
infringements, will enable players in the online advertising ecosystem and rightsholders to share in
the responsibility of preventing ad revenue from flowing to PFWs. Legislation may be necessary to
drive that result.
c) Advertisers and Ad Agencies
The American Association of Advertisers (“4As”) and the Association of National Advertisers
(“ANA”) recognize the threat to brand integrity and consumer trust by the placement of ads on
PFWs. 104 In a joint initiative, the 4As and ANA have strongly encouraged their members to take
affirmative steps to prevent U.S. advertisers from appearing on such websites. 105 These affirmative
steps include, for example, language in ad placement contracts that requires ad networks and
other intermediaries involved in U.S.-originated advertising campaigns to take commercially
reasonable measures to prevent ads from appearing on PFWs. 106 Other steps include requiring
intermediaries involved in the serving of an advertisement to expeditiously respond to complaints
by rightsholders or advertisers and provide remediation to advertisers for advertisements
misplaced on PFWs. 107
These affirmative steps, if combined with industry-wide best practices 108 that address the entire
online advertising ecosystem and supporting legislation, would provide enhanced tools to prevent
advertising revenue from flowing out of the U.S. market to PFWs.
d) Mobile App Marketplaces
Currently, the development, distribution, and sale of software applications for smartphones, tablets,
and mobile devices (“Apps”) is a burgeoning field. The major marketplaces for such apps are
maintained by major companies, including Apple (iTunes), 109 Google (Play), Amazon (App Store),
and Microsoft (Windows Phone store). These marketplaces allow third-party software developers to
submit apps for distribution and sale to users for either a small fee or free. The various app stores
generally cite intellectual property issues in their criteria for eligibility for developers to (1)
maintain their status as developers for the platform; and (2) to submit and distribute apps through
the company’s store platform.
Many App marketplace providers have created and implemented streamlined online complaint
forms for copyright and trademark owners to use to request removal of infringing content and apps.
These forms and procedures are ever-evolving, and have improved significantly in terms of both
effectiveness and average response time over the last two years. It is important to note, however,
that the forms and procedures differ between providers. Rightsholders must recognize and strictly
adhere to the technical requirements for submitting a complaint set forth by each marketplace
provider in order to improve the chances of receiving a prompt and satisfactory response.
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