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  1. #1
    Join Date
    Aug 2002
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    Seattle
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    Interesting DMCA situation

    Today we received a DMCA request from a very large media company who owns a significant number of copyrights for which there is a complaint against one of our customers.

    Normally this is a no brainer, comply and remove the violator. The problem is, there is no evident violation as is required by the DMCA. The claim is that the retail box DVD's being sold by this customer are actually pirated. I have no way of proving or disproving this allegation.

    In an attempt to clarify the situation I asked the attorney in charge of the request to break down why a service provider is responsible for pirated material being sold as a physical product and I was given what seemed to be a very loose explanation of how it counts under DMCA because the site we host is facilitating the sale of the physical product.

    Has anyone else had this type of situation or received an official legal interpretation that would answer my concern?

  2. #2
    I think you have to remove it, and let the client file a counter-notice and put-back procedures if the client can prove they are breaking no laws.

    You probably could try to protect them, and ask for more proof if you feel in doubt, but I don't think that is a good route to go down.

    I think you can keep their website up, if you remove / ask them to remove the links to the specific dvds being sold.

    Once access to those materials is removed the complaint should be satisfied.

    But likely you'll be receiving more soon.

  3. #3
    Join Date
    May 2001
    Location
    Dayton, Ohio
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    4,977
    The DMCA normally only applies to the electronic distribution of copyrighted materials. Since this is the electronic purchase of counterfeit physical goods it might still apply but I think normally this would fall under general US copyright law. I am by no means a lawyer. I'm thinking it would be a good idea to take down the client and allow him to send a formal counter to the DMCA contact.

  4. #4
    Join Date
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    What's a "counter notice?" How does that work?

    I'm really hoping to get a solid handle as to whether or not this is legal so I don't have to stay on the side of caution thus giving a raw deal to my customers who may not have done anything wrong.

  5. #5
    i'm not sure how accurate this site is,(i'm no law type either) but they seem to be pretty thorough.

    http://www.chillingeffects.org/dmca512/faq.cgi#QID130

  6. #6
    Join Date
    May 2001
    Location
    Dayton, Ohio
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    Quote Originally Posted by IRCCo Jeff
    What's a "counter notice?" How does that work?

    I'm really hoping to get a solid handle as to whether or not this is legal so I don't have to stay on the side of caution thus giving a raw deal to my customers who may not have done anything wrong.

    http://www.chillingeffects.org/dmca512/faq.cgi#QID132

    Take everything with a grain of salt with legal questions on the Internet but that is my general understanding of a counter notice. I'm normally the one sending a DMCA so I have never had to write up a counter.

    [edit]Seems I got beat to the punch [/edit]

  7. #7
    Quote Originally Posted by The Prohacker
    http://www.chillingeffects.org/dmca512/faq.cgi#QID132
    [edit]Seems I got beat to the punch [/edit]
    Jeff must be chewing wrigleys doublemint gum!

  8. #8
    Join Date
    Aug 2002
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    Seattle
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    Wow, looks like I overlooked that part. Thanks

  9. #9
    That would be odd for an attorney to make a baseless threat. (<---sarcasm)

    This is something I have had to deal with several times lately. If you asked for clarification and the attorney wont give it I would not worry about it. If he gives it and the customer objects claiming that he owns it I dont turn it down, if the customer contacts the attorney and copies me on it. The attorney is contacting you because he doesnt know who the client is, or the client has not responded.

    This is our policy and we are yet to be sued. We have had a bunch of threats, but no one backs it up if they have direct communication with the client. In this case I would just respond to the attorney with the the text about false complaints and ask the attorney to declare in writing that he holds the rights, or respresents the party that does. Last week I had an attorney to send us an email stating that they hold the copyright to every picture on a site and if we didnt shut it down immediately they would sue us. I replied to here, "Please send me an email stating that you own the rights to every picture on the site." She responded in a much nicer tone with a link to one picture they owned the rights to. The email before was threatening to our techs. It was quickly resolved once she acted nice with the information needed. She then thanked me, but I couldnt resist replying that it would have been down 24 hours quicker if she would have been truthful from the start.

    We have worked with many large corporations and even government agencies on AUP issue. When it is a real case they are interested in getting the exact information necessary to help take down the offending site. When it is someone threatening you and telling you about the big suit they are bringing it is usually a weak case. Most are actually false. One we even proved he wasnt an attorney and had several lawsuits against him for claiming DMCA. I responded with a link to the EFF (Electronic Frontier Foundation) and mentioned that I forwarded everything he sent us to help them in their suit. His response, "Even if you get a judgment I wont pay it." That was the last we heard from him.

    If you search "Michael Crook DMCA" on google you will find a case where a provider actually shut of a company based on a false claim. Add "Foxnews" to the search and you will see why we did not comply with his claims. This is why we had to relax our position on DMCA complaints. You have to research before shutting off a customer. You dont want to be wrong.

    You really have to go with your gut feeling on these. It is hard for someone outside to tell you what to do. If you feel this is a BS complaint ask for clarification. Also, try to get a feel for the customer response.
    Looking for next opportunity

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