Dialog
Question:
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In accordance with the Digital Millennium Copyright Act of 1998, I have e-mailed notification to webmaster@hostrocket.com RE: copyright infringement on your servers by your client at addconsults.com. Our demand for the immediate removal and destruction of files is included. Please respond by e-mail to larissa@ideacatchers.com or by phone at 972-732-1424 that these files have been deleted. Thank you.


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On 2001-07-20 EST at 03:34:44, brendan wrote:
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You will need to provide more information than that if you want us to close their account.

-Brendan Brader
HostRocket.Com


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On 2001-07-20 EST at 06:43:28, he/she wrote:
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Additional information has ALREADY been provided. Check your webmaster@hostrocket.com e-mail account. If you can provide a fax number I will be glad to fax this documentation as well.

Please advise as to when this account will be closed. Thank you.


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On 2001-07-20 EST at 08:05:20, brendan wrote:
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I need you to send info in through this ticket system.

-Brendan Brader
HostRocket.Com


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On 2001-07-20 EST at 14:56:45, he/she wrote:
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This is your THIRD AND FINAL NOTICE regarding copyright infringement on your servers. Notice has been previously provided by e-mail to webmaster@hostrocket.com, as well as through this ticket system. Contrary to your obligations under the DMCA, I have been unable to find your contact procedures for copyright matters nor your registered agent as required with the U.S. Copyright Office. Despite telephone messages and repeated requests you have also failed to provide your fax number where I can submit additional documentation. In order to limit your monetary liabilities under the DMCA, you are required by law to respond EXPIDITIOUSLY to this matter. Repeated requests for information that you already have is inexcusable.

My original letter and documentation is pasted below:

July 19, 2001

Dear Sirs:

This is to inform you in accordance with the Digital Millennium Copyright Act of 1998 that copyrighted materials owned by Idea Catchers, Inc. have been infringed on your servers at ns9.hrwebservices.net.

This letter is to demand the immediate removal and destruction of all graphics and files hosted by your client at addconsults.com.

Idea Catchers, Inc. is the copyright owner and retains all rights to all graphics currently displayed at http://www.addconsults.com. Additionally, the source code for this site has been adapted and modified without permission from copyrighted materials also owned by Idea Catchers, Inc. A reference page clearly noting our copyright ownership for this source code and graphics is attached.

The domain owner Terry Matlen d/b/a ADD Consults has failed to fulfill the terms of our agreement with her dated January 8, 2001, and she has defaulted on payments owed. No license or copyright has been granted. Failure to remove these files immediately and without haste may result in monetary liability for copyright infringement by HR Web Services under the DMCA.

For additional information you may contact Ms. Matlen\'s prior host, who removed these same files for copyright infringement less than 2 weeks ago:

Cilex Technology Solutions
http://www.cilex.net
2900 West Maple, Suite 110
Troy, Michigan 48084
Phone: 248-649-1093 Fax: 248-649-4709

Please call me at 972-732-1424 with notification that these files have been deleted. I can also be reached by e-mail at larissa@ideacatchers.com.

Sincerely,
Larissa Church
President and CEO

CODE REFERENCE AS NOTED ABOVE:

<!DOCTYPE HTML PUBLIC \"-//W3C//DTD HTML 4.0 Transitional//EN\"
\"http://www.w3.org/TR/REC-html40/loose.dtd\">
<!-- \"Copyright 2000 Idea Catchers, Inc. This software is copyrighted. No part of this software, the site, object or source code, graphics or text may be copied, reproduced, translated or reduced to any electronic or other medium or machine readable form without the prior written consent of the owner. Please contact Idea Catchers, Inc. prior to copying, downloading, reproducing, or otherwise using any part of this site. http://www.ideacatchers.com -->
<html>
<head>
<title>ADD Consults - Resources for ADD/ADHD</title>
<meta http-equiv=\"Content-Type\" content=\"text/html; charset=iso-8859-1\">
<meta name=\"description\" content=\"ADD Consults offers online consultations for those touched by Attention Deficit Disorder. Our worldwide referral network matches individuals and families who need help with local ADD professionals.\">
<meta name=\"keywords\" content=\"add, adhd, attention deficit disorder, terry matlen, a.d.d., hyperactivity, learning disabilities, online therapy, ad/hd, psychotherapy, mental health, special education, psychoeducational services, adda, chadd, ritalin, dexedrine, adderall, i.e.p., therapist, psychotherapist, psychotherapy, american psychiatric association, distracted, impulsive, hyperactive, behavior, health care, mental disorders, add coaching, counseling, consultation, depression, anxiety, advice, resource, support, help, behavioral therapy, cognitive therapy, evaluation, national attention deficit disorder association, children, adults, parents, treatment, social work, certified social worker, michigan, new york, detroit, usa\">
<script LANGUAGE=\"Javascript\">
<!--
browser_name = navigator.appName;
browser_version = parseFloat(navigator.appVersion);
if (browser_name == \"Netscape\" && browser_version >= 3.0)
{
roll = \'true\';
}
else if (browser_name == \"Microsoft Internet Explorer\" && browser_version >= 3.0)
{
roll = \'true\';
}
else
{
roll = \'false\';
}
image1 = new Image();
image1.src = \"images/research2.gif\";

image2 = new Image();
image2.src = \"images/gethelp2.gif\";

image3 = new Image();
image3.src = \"images/connect2.gif\";

image4 = new Image();
image4.src = \"images/shop2.gif\";

function Form_Validator(theForm)
{

if (theForm.ListEmail.value == \"\")
{
alert(\"Please enter your e-mail address\");
theForm.ListEmail.focus();
return (false);
}

Erm...


Well... Get a new site, and a new host.... Sorry...But I think that's your only option...

Well...Brendan IS the host. :)

I think you should provide a fax # so that they can fax you hard copies of anything related to the supposed copywrite infringement.
Did you contact your client regarding the matter?

Jim

Originally posted by RotoHost
Well...Brendan IS the host. :)


:homer:: DOH! :eek:

I need coffee :D

Changed my mind about post

Does anyone have the official link to the Digital Millennium Copyright Act of 1998? I'd like to read it more closely. Is source code (specifically HTML) covered? What if she alters the code in her own way so it is no longer the 'original' code that was provided to her, but does the same functionality?

Originally posted by allera
Does anyone have the official link to the Digital Millennium Copyright Act of 1998? I'd like to read it more closely. Is source code (specifically HTML) covered? What if she alters the code in her own way so it is no longer the 'original' code that was provided to her, but does the same functionality?

Some links that have information I've had to use too many times to want to:

Digital Millennium Act in PDF format:
http://www.loc.gov/copyright/copyright/hr2281.html

Copyright Office on its Directory of Service Provider Agents for Notification of Claims of Infringement:

http://www.loc.gov/copyright/onlinesp/list/index.html


The Copyright Office provides PDF forms for designating your agent:

http://www.loc.gov/copyright/onlinesp/format.html

:) This is very simple:

IdeaCatchers claims copyright infringement by Addconsults.
As proof they provide a small slice of code from the Addconsults web site which includes a IdeaCatchers copyright note.

Facts:
1. The current code on the AddConsults web site does not contain the copyright paragraph.
2. The two sites look nothing alike.
3. There is obviously no claim of infringement regarding the content of the site.
4. The remaining code in dispute is just a javascript which could have been produced by Dreamweaver, FrontPage or any other web authoring tool. Alternatively, it could have been picked up at some site which provides free javascripts.

Therefore, IdeaCatchers has proven nothing.

Conclusion:
IdeaCatchers does not have a legal leg to stand on and they know it. They can't get to the site owner and they are devoting their energies to pester the host hoping to scare him with their legal BS.

Suggestion:
Tell IdeaCatchers that the evidence they have provided is false and does not in any way verify the copyright infringement they claim. Therefore, the site stays as is.

The host's liability in this case is nill. It's not like they host a mp3, or a video or any other material that is easy to tell if it is copyrighted.

I might be off course here but it seems to me from a quite glance as the IdeaCatchers site that they are a web development team. I presume they are getting all bent out of shape for being stiffed on the bill.

The easiest solution for you in to contact both parties and have them send you a PSD file (or equivalent) of the original design. He who fails to produce is the guilty party.

It seems like a lot of trouble to go to if they were paid for the site, and the copyright in the header is easily enough removed *after* the fact.

Copyright for design work etc, isn't neccessarily transferred when someone pays the bill either. It stays with whoever produced the 'art' in the first place, paying the bill allows the client to use that art for their own ends.

All in all, quite a sticky problem, to be sure, to be sure.

If I had to make a decision, knowing none of the facts, and making a bland shot in the dark? I have a feeling the client may be at fault and need to clear a few things up.

Greg Moore

Originally posted by akashik
I might be off course here but it seems to me from a quite glance as the IdeaCatchers site that they are a web development team. I presume they are getting all bent out of shape for being stiffed on the bill.

The easiest solution for you in to contact both parties and have them send you a PSD file (or equivalent) of the original design. He who fails to produce is the guilty party.



This is irrelevant to the copyright infringement claim.

It is not the host's problem if IdeaCatchers got stiffed or not by their client nor is the host responsible to rectify it.

The point is that IdeaCatchers has not submitted any evidence to prove their claims of copyright infringement by AddConsults.

If the host takes the site down without sufficient evidence, then he runs the risk to get sued by his client.

I agree they'll need to prove that the site in question still belongs to them (if at all), but they do have an issue if someone is using their work without their permission - given through the exchange of the fee for the building of the site in question.

As for Hostrocket, as far as I can see, unless there is proof postive of the site not being paid for, and belonging to the design team in the first place then they're in the clear. They can't be held responsible for hosting the site if they are not 'knowingly' hosting stolen goods. When we start getting nailed for having someone else's dirty secrets stored on a box then we'll all be in trouble. I for one wouldn't want to go through every site we host on a daily basis looking for images someone else may own.

Hehe, best clarify that last paragraph with a lawyer of course.

If the customer has a receipt for the costs of the site then all is good.

Greg Moore

Please note, I am not an attorney, and I don't play one on TV.

If they ask you to remove it, are you obligated to? Or do they need a court order?

I don't think that this is something that you can just take their word for. There are too many legal issues than to go ahead and say, "OK, I will shut someone else's site down because you are claiming copyright infringement."

Look at Napster. There are many copyright infringements that they deal with (albeit the music is not on their servers), and they needed a court to step in. If the music companies said to them, "You are in violation of copyright and you must shut down now", they wouldn't, nor hadn't done it.

Very true, and I think Brendan is doing the right thing with it so far. One of those little odd jobs of being a host is going to bat for your clients.

Our game plan runs much the same and goes along the lines of:

Thanks for bringing this our attention. We'll happily comply with your request on receipt of proof to the validity of your claim. We'll then inform the customer themselves and get their side of the arguement. From there it's a judgement call, though favoured towards the client to the point where batting for them will interfere with our other clients (ie getting our business shut down).

As I said, I'm not aware of much of the situation though first impressions do lead me to believe the customer may be up to something. Most designers here would have heard stories of people's work being nabbed without pay. A lot of work is done on an 'honor system' where site designs are shown to clients - it just makes it easier to work that way. Sadly some people tend to abuse that trust. In the main though people appreciate that system a lot more and you tend to have a much friendlier working relationship with people.

Anyhoo, that's a bit off-topic. :)

Greg Moore

You'll probably have more legal liability by getting involved than NOT getting involved. You shouldn't have to play judge, that's what the courts are for. Of course, if it's an obvious copy of something... you can generally remove it without problems. But anytime there's any doubt, you may end up in trouble with the site that you removed if they can show it wasn't copyright infringement.

IdeaCatchers have you contacted your client that owes you money? Have you provided proof you own the copyright? You are required to do that under the act as well.

Dear friends,

Please excuse my appearance. I'm working dilligently to provide you a new and improved ADHD resource, with more features and functions than ever before!!!!. Come back in a few days to see my new website, along with added resources for all of your ADHD related needs. I will still be available for consultations during my move. If you need to contact me, please email me at terry@addconsults.com

See you real soon! Terry


That is a quote from http://www.addconsults.com/. If she is making a new website, then what is the problem?

4. The remaining code in dispute is just a javascript which could have been produced by Dreamweaver, FrontPage or any other web authoring tool. Alternatively, it could have been picked up at some site which provides free javascripts.

I don't see in which part of this code is in terms of violating any copyrighted materials.. IdeaCatcher's so called image rollover function is so generic.. I dont think they have any rights of claiming it as their copyrighted material..

From Idea Catchers Inc.

<script LANGUAGE="Javascript">
<!--
browser_name = navigator.appName;
browser_version = parseFloat(navigator.appVersion);
if (browser_name == "Netscape" && browser_version >= 3.0)
{
roll = 'true';
}
else if (browser_name == "Microsoft Internet Explorer" && browser_version >= 3.0)
{
roll = 'true';
}
else
{
roll = 'false';
}
image1 = new Image();
image1.src = "../images/websites2.gif";

image2 = new Image();
image2.src = "../images/applications2.gif";

image3 = new Image();
image3.src = "../images/marketing2.gif";

image4 = new Image();
image4.src = "../images/ideacoach2.gif";

image5 = new Image();
image5.src = "../images/bullet_ani.gif";
//-->
</script>

From Java-scripts.net (http://www.java-scripts.net/image/image4.shtml)

<script language="Javascript">

<!--



//Slide Show script (this notice must stay intact)

//For this and more scripts

//visit java-scripts.net or http://wsabstract.com



if (document.images) {

button1 = new Image

button2 = new Image



button1.src = 'img1.gif'

button2.src = 'img2.gif'

}

//-->

</script>

From Macworld From Macworld.com (http://www.macworld.com/2001/02/08/howto/jsme_rollover.html)

<script type="text/javascript" language="javascript">
<!-- Hide script from older browsers

if (document.images) {
offButton = new Image
onButton = new Image

offButton.src = "images/blueButton.gif"
onButton.src = "images/redButton.gif"
}
else {
offButton = ""
onButton = ""

document.myButton = ""
}

// End hiding script from older browsers -->
</script>



Notice how these scripts are pretty much similiar to one another.. So.. In what ground does ideacatcher have a legal standpoint stating that the code which they used is legally theirs.. From browsing through their awfully looking site, I dont think they can come up with any coding on their own. BTW.. Isn't this image http://www.ideacatchers.com/images/davinci.gif violating Leonardo Da Vinci's painting?? =P

I think the problem was the site design in 'toto', not the code. The code posted was mentioning the copyright of the design itself (graphics/html etc) - I think the rollover was just part o the build.

From the post above it appears the owner of the site is rebuilding, so it's not longer an issue.

Greg Moore

I have had to extensively study the DMCA. I seriously doubt there is a problem with this case since the webmaster is rebuilding. However, if you have a client who's site is like another, and the other contacts you about it....then you are REQUIRED to deal with it in order to be granted the relief offered by the DMCA. In otherwords, you can easily be immune to any lawsuits brought against you (as the host) by the Copyright holder. If you deal with the issue, and the Copyright holder takes you to court, you WILL win and can file a countersuit.

We make pretty good money from this also as the DMCA does not saying anything about a host not being able to charge to deal with it. We charge $50/hour to the Copyright holder deal with these issues. This was originally meant to prevent abuse (eg: two kids fighting over pokemon designs and trying to get each other shut down, etc). The Copyright holder must snail mail all relevent paperwork too us for review, and the claimed copyright infringer can as well.

That is the hard way, but profitable way to do it. The DMCA leaves it up to you as to how to deal with it. It does however, offer recommendations. Here is an easy recommendation it offers. Any who say this is unfair is wrong. If they cant afford $50/hour then they cant afford to take anyone to court (at least $125/hour) and the issue is mute. We are in this business to make money, not play Judge. However, we are more than happy to play judge (if paid) and determine based on evidence who is right or wrong. The DMCA recognizes that the servers still belong to the Host, and gives us that right.

Here's the easy way..Upon notification, you immediatly disable the alleged infringer's site. The alleged can then file a counter notification to you disputing it, and then you allow the site back up. From that point on, you are completely out of it and legally safe. The Copyright holder must then take the infringer himself to court and get a court order for you to take down the site. Here's the kicker, you only HAVE to follow a court order if it is from your own state, although you can certainly agree to oblige one from another state. When you recieve a court order from a court who's jurisdiction does not cover your location, it becomes merely a court request. You can require that the court order comes from a court who's jurisdiction covers your area.

You also have another option. Ignore it. To take you to court, a copyright holder has to provide undisputable evidence that you have been notified of the infringement. I know some attorney's who deal with online infringement and they say they would rather pay than be ignored. When totally ignored, this completely ties their hands unless they pay a lot to have a cop hand deliver a notification, and even that doesnt always work because the place may not be open at the time, which means a waste of money.

Since we DO offer an outlet for Copyright holders (albeit, not for free), we are following the DMCA to the letter. Since we charge for that, it offers an additional layer of protection for our clients against nonsense and useless abuse.

Good points, Webdude. However, I think you (and you probably do) should still disable an account if it's a clear cut case of infringment and not force people to pay you for the service. Of course, most cases aren't, but the one's that are clearly in violation, they shouldn't be charged. As for court orders, a lot of good it did against Napster anyway, since that aspect was brought up. I personally had (and still do) an issue with a person on Interland's hosting network that took some of my software and literally changed all the copyright notices to his name and removed anything that credited myself as the author, which he replaced with his name, along with his little advertisement saying that he can provide a service of creating scripts like that very one. (Not that he was selling my codes, etc., but just that he used it as a tool to impress people of his alleged abilities, giving himself credit for creating something he bought).

Interland, after given evidence that completely and undeniably proves this violiation beyond any doubts whatsoever, told me to get a court order forcing them to take any action, or they wouldn't do anything about it. I, of course, supplied with with a well written, legal notice, and did so multiple times. I pointed out all the many violations and examples to prove it, which they never denied. They simply took the policy of flat out refusing to do anything, unless I force them to with a court order. I never did (I still can though), because I just don't know that it's worth the money to try and take him to court. Not to mention, although I'm not familiar with the state-to-state issues or the facts with that, I'm in California and he's in Oklahoma -- therefore, if what you say is factual, it'd prove more of a problem.

However, I'm certain the state is an irrelevant matter, as long as it's in the U.S., since no one could file and truly sue any out-of-state individual or company otherwise... so perhaps you can clear that up, and what you mean for me, as I'm a bit confused about what you were saying in that aspect. Nonetheless, the fact remains, that I will have to get a court order, which still leaves the issue that I will have to file suit to stop it from continuing, yet that's a lot of money and time wasted, just to stop this guy from being a liar to boost his ego and make it "look like" he created my software, even though it blat out asked, he usually won't deny he didn't create it -- though he doesn't respond to questions about him altering and removing my copyright notices, which could result in a $2,500 fee per incedent (i.e., each page, each template, each script's header's, etc.). Anyway, people suck sometimes and those Interland *******'s really suck!

However, that just gives me more inspiration to indeed file suit, and definitely against Interland, since they had all the reasons they needed to coopoerate, but refused, simply because they can. And, that's just it. Any host can refuse and require a court order, even when it's completely out of line to ask for... and good luck suing them, holding them liable and actually collecting any money. The Internet sucks for things like this, people can get away with anything. The DMCA is basically a joke and ineffective for the most part, and we all know it. It still comes down to how reasonable a web host is and some are just jack-asses, and Interland just happens to be one of them. So, eveb though you're smart to charge for the service, I hope you surely don't charge people with ligitimate and undisputable proof and add to a victim's greif. :-)

I am an attorney but I'm not giving any legal advice here.

I'm wondering, did hostrocket ever contact their client in the first place about the problem?

Second, you never want to be the judge and jury regarding disputes between two sides. That's what the court is for and usually the legislature recognizes the problem between a vendor who might have to be liable for breaching a contract with a client because of some third party claim. Not easy stuff.

Originally posted by slinky

Second, you never want to be the judge and jury regarding disputes between two sides.

Definitely, precisely and obviously. I hope no one is making any judgement calls about it. Anyone can say anything, and I'm certainly not saying this user made anything up or anything about them ot the company they are saying they have/had a problem with, but we just can't know.