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Under the safe harbor provisions of the DMCA, DigitalRev doesn't have much wiggle room for not honoring a DMCA notification. They can't, for example, investigat

Under the safe harbor provisions of the DMCA, DigitalRev doesn't have much wiggle room for not honoring a DMCA notification. They can't, for example, investigate to see if the claims in the notification are true. As long as the form of the notification is valid, they have to honor it. However, in this case the form of the notification is not valid. By H.R.2281 Section 512 [1], under the heading "ELEMENTS OF NOTIFICATION", a DMCA notication must include: Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. GoPro did not identify any copyrighted works. They identified trademarks, which is a whole nother segment of IP law. To give you an idea how how much the DMCA does not apply to trademarks, the word "trademark" appears only six times in the entire text of the law. Five of those times, it's part of the title "Commissioner of Patents and Trademarks", and the other time it just says that the bill doesn't annul or limit trademark rights. So long story short, DigitalRev should not have honored this DMCA notification, because it simply isn't a valid notification. It'd be like if I filed a DMCA notice against my neighbor, and under "infringing material" I listed "He keeps letting his dog crap in my yard." [1] http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR: (sorry I can't link to the specific section because THOMAS is kinda backwards like that)

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will_brown 14y ago
>We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company: “GOPRO” Registered: 3/3/2009 US Registration# 3032989 “HERO” Registered: 12/20/2005 US Registration# 3308141 Based on the above, I have to agree the DMCA Notice seems to be embarrassingly improper as an attempt to enforce alleged TM violations. Even assuming the TMs above were actually CRs, it would still be improper to try to enforce a CR when the "alleged" infringement is obviously permissible under the Fair Use Doctrine. Fair Use: In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. (http://en.wikipedia.org/wiki/Fair_use http://en.wikipedia.org/wiki/Fair_use)
- jerf 14y ago
  Fair use doesn't apply here. Fair use is a defense that can be used if charged with copyright violation that would otherwise be a violation of the copyright. It doesn't relate to trademarks. In terms of trademarks, it simply isn't illegal to mention the product by its trademarked name, so no defense is necessary in the first place as it is not even a valid charge. Subsequent followup by the company indicates they may have a valid IP claim on other materials (and may not, I don't know and frankly I don't care), but one that the DMCA can't be used to enforce.
  - mistercow 14y ago
    I think will_brown's point is that in order for the DMCA to apply, we have to charitably assume that the trademarks are also covered by copyright, in which case fair use would apply.
    - magicalist 14y ago
      Fair use still doesn't matter in the case of the DMCA. DigitalRev can ignore the takedown notice because they believe that it is fair use, but they then open themselves to liability because they lose their safe harbor protections (or their ISP does. It's not clear to me that a publication has safe harbor over their own articles in the first place, since presumably they are posting their articles with full knowledge that they are posting them...aka the articles aren't user generated content). GoPro could then sue DigitalRev and/or Softlayer, who could then use fair use as a defense, but it would proceed as in any copyright infringement suit. This makes sense, since fair use is (mostly) an affirmative defense and has to be decided by a judge. On the other hand, the DMCA procedure gives much more power to the complaining party as they can use takedown requests to silence speech with little to no worry about the enforcement of perjury clauses as long as they can claim they didn't "knowingly materially misrepresent" their claim. Edit: and to actually get to will_brown's point: it would therefore technically not be improper to serve a takedown notice on something that would be covered by fair use, as technically fair use is infringement (otherwise you wouldn't need a "fair use" of it). However, the poster could then file a counternotice and get it restored in "not less than 10, nor more than 14, business days". If the complaining party then filed suit (against the poster, not the hoster), they would have to demonstrate infringement and the poster would have to demonstrate fair use (or the judge could throw it out if it was obvious). It's that 10-14 days of silencing, even if the claimant never plans to file suit, that's the second biggest problem with the take down system (after the complete lack of penalties for that kind of misuse).
Cyranix 14y ago
THOMAS is indeed pretty clunky, which is why I prefer Cornell's site (though it doesn't provide permalinks to arbitrary depth either): http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512

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will_brown 14y ago

>We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company: “GOPRO” Registered: 3/3/2009 US Registration# 3032989 “HERO” Registered: 12/20/2005 US Registration# 3308141 Based on the above, I have to agree the DMCA Notice seems to be embarrassingly improper as an attempt to enforce alleged TM violations. Even assuming the TMs above were actually CRs, it would still be improper to try to enforce a CR when the "alleged" infringement is obviously permissible under the Fair Use Doctrine. Fair Use: In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. (http://en.wikipedia.org/wiki/Fair_use http://en.wikipedia.org/wiki/Fair_use)

jerf 14y ago
Fair use doesn't apply here. Fair use is a defense that can be used if charged with copyright violation that would otherwise be a violation of the copyright. It doesn't relate to trademarks. In terms of trademarks, it simply isn't illegal to mention the product by its trademarked name, so no defense is necessary in the first place as it is not even a valid charge. Subsequent followup by the company indicates they may have a valid IP claim on other materials (and may not, I don't know and frankly I don't care), but one that the DMCA can't be used to enforce.
- mistercow 14y ago
  I think will_brown's point is that in order for the DMCA to apply, we have to charitably assume that the trademarks are also covered by copyright, in which case fair use would apply.
  - magicalist 14y ago
    Fair use still doesn't matter in the case of the DMCA. DigitalRev can ignore the takedown notice because they believe that it is fair use, but they then open themselves to liability because they lose their safe harbor protections (or their ISP does. It's not clear to me that a publication has safe harbor over their own articles in the first place, since presumably they are posting their articles with full knowledge that they are posting them...aka the articles aren't user generated content). GoPro could then sue DigitalRev and/or Softlayer, who could then use fair use as a defense, but it would proceed as in any copyright infringement suit. This makes sense, since fair use is (mostly) an affirmative defense and has to be decided by a judge. On the other hand, the DMCA procedure gives much more power to the complaining party as they can use takedown requests to silence speech with little to no worry about the enforcement of perjury clauses as long as they can claim they didn't "knowingly materially misrepresent" their claim. Edit: and to actually get to will_brown's point: it would therefore technically not be improper to serve a takedown notice on something that would be covered by fair use, as technically fair use is infringement (otherwise you wouldn't need a "fair use" of it). However, the poster could then file a counternotice and get it restored in "not less than 10, nor more than 14, business days". If the complaining party then filed suit (against the poster, not the hoster), they would have to demonstrate infringement and the poster would have to demonstrate fair use (or the judge could throw it out if it was obvious). It's that 10-14 days of silencing, even if the claimant never plans to file suit, that's the second biggest problem with the take down system (after the complete lack of penalties for that kind of misuse).

Cyranix 14y ago

THOMAS is indeed pretty clunky, which is why I prefer Cornell's site (though it doesn't provide permalinks to arbitrary depth either): http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512