Pagewaxing: A Misunderstanding of Trademark, Copyright, and Tort Law

Since its inception, the Internet has remained a home for a diversity of viewpoints.  Sometimes this diversity in voices irks others, who then take action to censor those that they do not agree with.  Pagewaxing is a new and unique form of censorship that has become increasingly common on the Internet.  Pagewaxing is a process by which a person or business uses the threat of litigation for trademark infringement, copyright infringement, or defamation against a website to censor the site owner.  Pagewaxing involves using baseless legal threats to compel a web hosting company to take down a webpage or domain name.

Pagewaxing typically stems from a misunderstanding of the law by web hosts and internet service providers.  This misunderstanding comes in one of three forms: a misunderstanding of the law on service providers' vicarious liability for the torts of their users (such as libel), a misunderstanding of the fair use doctrine in trademark law, or a misunderstanding of fair use under copyright law.  The most common form of pagewaxing is practiced by corporations, that is, censorship of user product reviews or negative comments towards or about corporate brands.  But religious groups, market competitors, and celebrities have all used pagewaxing to take down their opponent's websites.

Web hosts, internet service providers, and any other "interactive computer service" providers can, almost unequivocally, escape vicarious liability for the torts of their users.  Section 230 of the Communications Decency Act grants immunity for vicarious liability to "interactive computer service providers" who act as publishers of their user-generated content.  Additionally, these same classes of service providers can avoid trademark and copyright infringement liability for the contributions of their users simply by understanding fair use law, by understanding their obligations under the Digital Millennium Copyright Act, and by not inducing users to infringe upon the trademark or copyright rights of others.

If you believe that you have been the victim of censorship through pagewaxing, or if you are a service provider that is concerned about your potential liability for trademark infringement, copyright infringement, or libel, please a contact an intellectual property attorney with experience in this area.