DigitalRev.com served with DMCA takedown notice by GoPro for review
digitalrev.com
digitalrev.com
As an aside: this is what happens when Congress "innovates" with the legal system. I'm sure someone thought it was a good idea to make take-down notices not be legal documents signed by a lawyer. But now any shmuck can send one without the threat of repercussions. When you have a device that invokes the color of state authority, you should have to jump through certain hurdles. Having to find a lawyer willing to risk sanctions putting a signed document in front of a judge is a powerful filter.
ChillingEffects has a long (but very informative) FAQ on the DMCA that dispels a lot of common misunderstandings.
Some bits that are of note in my opinion is the overview of the takedown process: http://www.chillingeffects.org/dmca512/faq.cgi#QID130
And the fact that the provider /must/ respond to the takedown notice: http://www.chillingeffects.org/dmca512/faq.cgi#QID129
And some information on the counter-notice procedure: http://www.chillingeffects.org/dmca512/faq.cgi#QID922
Maybe they decided to use the trademarks on the names in the article? Sounds like a catch22 if you ask me. Put the trademark on the word and they serve you up a DCMA. Don't put it on and then you rise the ire of GoPro since you didn't use the mark on the trademarked names of their products.
Eh, what a hassle.
That's BS.
The hosting provider has every right to support their customer and keep the notice up. We've gone to court rather than do a takedown and prevailed on court costs, and we've persuaded upstream (colo and backbone) providers served by the same takedown notices to leave customers alone (e.g., not blackhole an IP) as well.
Btw, the number one most effective takedown avoidance tactic is to be an absolute stickler for the letter of the takedown requirements. We can usually get 5 or 10 business days of back and forth on our customers' behalf before the takedown mills manage to generate a fully compliant notice.
And if this notice really was just about a review mentioning a product by name, we would have ignored it or at the very least asked the sender to explain under penalty of perjury why the content was not protected under fair use.
Disclaimer: We're a registered hosting provider under the DMCA.
Also, the note in question is clearly defective, since it does not properly identify copyrighted material to be removed. The fact that Softlayer threatened to turn off the service due to a defective notice means that it cannot be used as a reliable ISP. Use FusionStorm, they actually read and comprehend DMCA notices, and in cases like this do not even contact their customers.
I don't think that's actually true in this case. The actual language of the law says that for a notification to be effective under the law, it must include identification of a the copyrighted work infringed. Since this notification does not identify copyrighted work (and explicitly refers to trademark), it technically isn't even a DMCA takedown notification, as defined under the law.
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
---
A take down notice that is so facially invalid may well qualify as knowing misrepresentation.
Or simply show incompetence that supports a claim of lack of knowing misrepresentation.
They state:
> Thanks for the heads up on this issue. The letter that was posted next to the review on DigitalRev was not sent in response to the review. Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store.
Original letter contains:
> Accordingly, we hereby demand that Softlayer.com immediately remove or disable access to the Infringing Material at:
> http://www.digitalrev.com/article/gopro-hero-3-vs-sony/Njk3M...
They should probably work on being super duper extra clear on legal notices sent to hosting providers that take down content.
There is no DMCA basis for mentioning a third parties trademarked names in a review (there is in commercials you can't say "Cheerios" unless General Mills is ok with it, but you can say "That O shaped cereal", but no such restrictions editorial). Further the complaint is specious. Further the filing of a counter notice takes little time. (I can't see anyone pursuing the alleged infringement in court).
A simpler explanation for me, is a manufactured controversy to get use rage views to drive traffic to a reviews site (which lives and dies by its traffic numbers).
I'm taking a wait and see attitude here.
I found this comment by photoknut[1] summed up the story:
"I'm sure the DMCA was used a general way for GoPro to have this article pulled. Sure they could've had lawyer contact lawyers and go through all that, but I'm sure this was easier. They clearly don't allow unauthorized resellers to use their images, that definitely falls under the umbrella of a DMCA takedown notice. GoPro owns those images and says who can use them, DigitalRev clearly can not. "
He goes on to mention that digitalrev has a shady history of re-selling the camera they damage in reviews as a new product.
1: http://www.reddit.com/r/gopro/comments/1anq5d/gopro_doesnt_l...
Yes, doing something completely incorrect is easier than hiring an expert. But GoPro isn't exactly a mom and pop shop these days, do you think they use this same 'this was easier' philosophy on reporting taxes?
After that it goes to the courts (if the DMCA complainant chooses to sue).
So, in short, when Congress built the DMCA, they made it possible to silence someone for a guaranteed 10 day period with a spurious DMCA request.
If they'd claimed a copyright infringement, though, the ISP has to act.
How many times have we gone "how the hell did that decision happen?" with a patent or legal case? Seems like it happens daily.
1. The hosting company does not have to act, ever. It just may cause them to be liable.
2. The hosting company can always push back on faulty notices, like this one, with no impact. There is nothing for them to be liable for, as the subject matter is not properly for a DMCA notice, and an invalid DMCA notice imputes no knowledge to them, even if the part that would normally give them notice is valid. This is actually well settled.
So, in short, no.
If you are a SoftLayer client and/or end user, i.e., subscriber, and you feel that material you have placed online that has been removed following an infringement complaint is in fact not an infringement, you may file a counter notification. 17 U.S.C. Section 512 (g)(3) requires that to be valid, the counter notification must be written and addressed to our agent (listed above) and must provide the following information (the list below comes straight from the statute; if you do not understand the language please seek independent advice):
A physical or electronic signature of the subscriber. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. SoftLayer is not required to respond to counter notifications that do not meet the requirements above.
No need to define the role of Brand Manager here, but it would seem that this take down notice was done to censor a review that they did not find endearing.
This one was sent by their "brand manager" called Patrick Hayes. I highly doubt they're a lawyer. Can anyone weight in on if this is lawful?
Does DigitalRev have any US presence at all?
I see a customer service hotline and a US webstore, but they are based out of Hong Kong.
"2701-2705 Saxon Tower
Cheung Sha Wan
Kowloon
Hong Kong"
Unless someone has the actual story. There may have been infringing content.
"This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store."
(No representation is made herein as to the validity or invalidity of this side of the story.)