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<pubDate>Thu, 21 Mar 2013 13:12:20 PDT</pubDate>
<title>Digital Camera Review Taken Down By A Botched DMCA Notice That Makes Claims Of Trademark Infringement</title>
<dc:creator>Tim Cushing</dc:creator>
<link>http://www.techdirt.com/articles/20130320/10452722397/digital-camera-review-taken-down-botched-dmca-notice-that-makes-claims-trademark-infringement.shtml</link>
<guid>http://www.techdirt.com/articles/20130320/10452722397/digital-camera-review-taken-down-botched-dmca-notice-that-makes-claims-trademark-infringement.shtml</guid>
<description><![CDATA[ <p>
We've seen the <a href="http://www.techdirt.com/search-g.php?num=20&#038;q=dmca+censor&#038;search=Search" target="_blank">DMCA takedown process abused</a> to stifle criticism or remove unflattering content from the web. Knowing that, the first reaction to reading about a website being forced to remove a product review after being hit by a DMCA notice is to assume some overzealous representative of the affected company is simply using copyright's powers for evil.
<br /><br />
DigitalRev recently posted a review <a href="http://www.digitalrev.com/article/gopro-hero-3-vs-sony/Njk3MDQ3MDg_A" target="_blank">comparing GoPro's Hero 3 camera with Sony's HDR-AS15</a>. Not long after that, <a href="http://www.petapixel.com/2013/03/20/gopro-uses-dmca-to-take-down-article-comparing-its-camera-with-rival/" target="_blank">a DMCA notice arrived from GoPro (or rather, its "brand representative"), demanding that the review be taken down</a>. So far, so censorious. But the DMCA notice sent didn't describe any sort of copyright violation. Instead, it headed off into a completely different IP area.
<br /><br />
The notice starts out like many others:
<blockquote>
<i>We are providing you this letter of notification pursuant to the Digital Millennium Copyright Act 17 USC??512(c) to make Softlayer.com aware of material on its network or system that infringes the exclusive copyrights of Woodman Labs, Inc d/b/a GoPro (&ldquo;Company&rdquo;). We hereby affirm that the undersigned is authorized to act on behalf of Company whose exclusive intellectual property rights we believe to be infringed as described herein.</i></blockquote>
Barring the extraneous question marks, this all looks perfectly normal. But the next paragraph reroutes the entire DMCA.
<blockquote>
<i>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:</i>
<br /><br />
<i>&ldquo;GOPRO&rdquo; Registered: 3/3/2009 <a href="http://tess2.uspto.gov/bin/showfield?f=doc&#038;state=4003:pdjho9.2.1" target="_blank">US Registration# 3032989</a></i>
<br /><br />
<i>&ldquo;HERO&rdquo; Registered: 12/20/2005 <a href="http://tess2.uspto.gov/bin/showfield?f=doc&#038;state=4003:pdjho9.3.1" target="_blank">US Registration# 3308141</a></i></blockquote>
At this point, the notice's issuer, Patrick Hayes (Brand Manager for Woodman Labs), is in uncharted territory. The Digital Millennium <i><b>Copyright</b></i> Act notice is for <i>copyright</i> violations only, as can readily be determined by name of the notice itself. Hayes reasserts his <i>trademark</i> violation claim a few paragraphs later, along with a sentence that briefly raises <i>copyright</i> again before returning to the misguided effort at hand.
<blockquote>
<i>As you may know, if this information is not removed after notice that complies with the DMCA, the Internet Service Provider may also be held liable for the <b>copyright infringement</b>.</i>
<br /><br />
<i>I have a good faith belief that use of the trademark(s) described above in connection with the domain and URLs described above is not authorized by the trademark owner, and such use is not otherwise permissible under applicable law.</i>
<br /><br />
<i>I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner.</i></blockquote>
Hayes really shouldn't be "representing" that any of this bizarre IP melange is "true and correct." Most of it isn't, starting with using a copyright-only takedown form to shutter a review over alleged trademark infringement. Then there's this: the trademarks mentioned are character marks for the name of the product itself -- "GoPro Hero" -- suggesting that DigitalRev is not allowed to use the name of the product when reviewing the product. This is not how trademark law works. At all.
<br /><br />
Hang on, though. It gets a bit weirder from there.
<br /><br />
As I mentioned earlier, the first reaction is that GoPro doesn't like DigitalRev's review and wants it removed before many more people can read it. (That was DigitalRev's first instinct as well, <a href="http://www.digitalrev.com/article/gopro-doesn-t-like-their/ODUyNjU2ODc_A" target="_blank">as detailed in its follow-up post on the subject</a>.) Fortunately, DigitalRev screencapped the relevant part of the review.
</p>
<center> <a href="http://www.digitalrev.com/article/gopro-doesn-t-like-their/ODUyNjU2ODc_A" target="_blank"><img alt="" src="http://i.imgur.com/1mBuxeD.png" style="width: 500px; height: 415px;" /></a></center>
<p>
<br /> There's nothing in that review that looks like it should trouble GoPro enough to overreact in this fashion. In fact, commenters on the site point out that DigitalRev's reviews of GoPro products usually range from "positive" to "overenthusiastic." So, if the review isn't the issue, what is?
<br /><br />
Thankfully, another rep from GoPro responded quickly to clear up the confusion... by adding more confusion. The official statement, left at both <a href="http://www.reddit.com/r/gopro/comments/1anq5d/gopro_doesnt_like_you_to_use_their_name_dmca_abuse/" target="_blank">Reddit</a> and <a href="http://www.petapixel.com/2013/03/20/gopro-uses-dmca-to-take-down-article-comparing-its-camera-with-rival/" target="_blank">PetaPixel</a> reads as follows:
<blockquote>
<i>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. As part of our program &ndash; we ask merchants who are selling our product to use authorized images. That is why DigitalRev was contacted. But &ndash; our letter did not clearly communicate this and that is something we will correct.</i></blockquote>
There are a few problems with this, but first and foremost is the fact that the URL specified in the takedown notice is the <i>review's</i> URL. Nothing involving DigitalRev's online store was mentioned in the letter and no offending URLs listed. Not only that, but this rep claims to have spotted offending 'images,' something the mentioned trademarks <i>don't </i>cover. <a href="http://www.petapixel.com/2013/03/20/gopro-uses-dmca-to-take-down-article-comparing-its-camera-with-rival/?utm_source=feedburner&#038;utm_medium=feed&#038;utm_campaign=Feed%3A+PetaPixel+%28PetaPixel%29#comment-836263695" target="_blank">A comment left at PetaPixel by GoPro's social media rep</a> adds this to the conversation:
<blockquote>
<i>There are a few things that are muddling this situation at the moment. The notice was sent to digitalrev.com not because of the review, but because digitalreview.com is not an authorized reseller and are using our trademark and product images inappropriately. The notice is in regards to the sidebar, not the review itself, but we can see why it seemed like it as the url links to both.</i>
<br /><br />
<i>We would never attempt to restrict anyone's freedom to share their opinion about us or our products, positive or negative</i>.</blockquote>
Even if this rep is <i>correct</i> and Woodman Labs meant to target improper use of its trademarks, it missed with both the delivery system and the URL specified. A DMCA notice can't stop trademark infringement. Furthermore, while a hosting company <i>can</i> be held liable for contributory trademark infringement, it's usually a result of the host mishandling takedown notices (and <a href="http://www.techdirt.com/articles/20100322/0201248652.shtml" target="_blank">some conflation of copyright and trademark</a> by the presiding judge), rather than a foregone conclusion. Then again, if you want to hold a service provider liable for this sort of infringement, it helps to use the standard process -- directly contacting the site owner and asking him or her to remove the infringing items. Using a DMCA notice for alleged trademark infringement is just plain wrong, although various GoPro reps' insistence that the trademark infringement includes "images" most likely explains the existence of this half-copyright, half-trademark aberration.
<br /><br />
However, the most probable explanation for this IP circus is probably contained in this blog post from last November, <a href="http://elscottharrell.com/gopro-cameras-sent-me-an-infringement-notice-silly-bastards/" target="_blank">which details the author's brief altercation with Patrick Hayes and Woodman Labs over a parked domain containing the word "gopro."</a> The letter he received accused him of "domain infringement," and while the tone of the letter was generally cordial, Patrick Hayes made the assumption that <i>any</i> registration of the term "gopro" could <i>only</i> be related to Woodman Labs' products.
<blockquote>
<i>GoPro does not authorize any of its resellers (or anyone else) to use &ldquo;GoPro&rdquo; or &ldquo;HERO&rdquo; in domain names. Your registration of goprodivemaster.com is unfortunately in direct violation of this policy. We understand that your intention is simply to sell and promote our products, but GoPro cannot risk misleading customers into believing that they are interacting directly with GoPro when they are engaging with your website or your organization. The use of our trademark terms in your business name may cause confusion, and is prohibited under international trademark law.</i>
<br /><br />
<i>Even if the domain redirects to another site, this is not a permissible use of our brand terms.</i>
<br /><br />
<i>Please understand: GoPro has spent years building its brand name&mdash;only the company itself is legally represented as &ldquo;GoPro&rdquo; or the manufacturer of the &ldquo;HERO&rdquo; line of cameras. We need you to kindly discontinue the use of our registered/trademarked name as soon as possible.</i></blockquote>
The author points out that his parked domain had <i>nothing</i> to do with GoPro or its cameras. He also points out that this issue will certainly surface again, considering the Professional Association of Underwater Instructors uses the term quite often in relation to its instructor development centers. Additionally, he did a little detective work and checked out the WHOIS information on the email address and found the domain was associated with MarkMonitor. So, it appears GoPro is outsourcing its IP protection to a company that seems to take a <a href="http://www.techdirt.com/articles/20130205/03124421884/how-much-does-hbo-pay-markmonitor-to-send-dmca-notices-removing-its-official-content-google.shtml" target="_blank">pray-and-spray approach</a> to takedown notices.
<br /><br />
Quite possibly it takes little more than having the word "gopro" appear in a URL (like the review above) to summon the bot-fury of MarkMonitor and Patrick Hayes, "Brand Manager." This explains the bizarre trademark claims and the incomprehensible takedown of a positive review. If this is indeed the case, GoPro is probably considering taking the job back in-house, seeing as its reputation is being damaged further with each retelling of this unfortunate saga.
<br /><br />
<b>UPDATE</b>: GoPro's Twitter account claims that <a href="https://twitter.com/GoPro/statuses/314467226898006016" target="_blank">five other URLs were included in the takedown notice</a>, but were scrubbed by DigitalRev prior to publishing. However, it has not posted the unedited version for verification.
</p><br /><br /><a href="http://www.techdirt.com/articles/20130320/10452722397/digital-camera-review-taken-down-botched-dmca-notice-that-makes-claims-trademark-infringement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130320/10452722397/digital-camera-review-taken-down-botched-dmca-notice-that-makes-claims-trademark-infringement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130320/10452722397/digital-camera-review-taken-down-botched-dmca-notice-that-makes-claims-trademark-infringement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>IP:-it's-all-so-much-peanut-butter-and-chocolate,-apparently</slash:department>
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<pubDate>Fri, 1 Mar 2013 08:44:00 PST</pubDate>
<title>System Used By New Six Strikes CAS, Falsely Identifies Game Mods As NBC TV Shows</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130224/22341022086/system-used-new-six-strikes-cas-falsely-identifies-game-mods-as-nbc-tv-shows.shtml</link>
<guid>http://www.techdirt.com/articles/20130224/22341022086/system-used-new-six-strikes-cas-falsely-identifies-game-mods-as-nbc-tv-shows.shtml</guid>
<description><![CDATA[ Reader <b>David Sutherland</b> emailed us this week about a DMCA notice that he received via his MediaFire account.  The notice, which we've included below (including all of the crappy formatting) claimed that he was using MediaFire to host "one of the following files: Downton Abbey, CONTRABAND (2012), GRIMM (2011), House M.D., MAN WITH THE IRON FISTS, THE, The Office."  The "file" they claimed was one of those TV shows/movies was "Cantha Cartography Made Easy 2009.tpf" which is actually <a href="http://wiki.guildwars.com/wiki/Guide_to_modifying_in-game_graphics/Player_made_modifications/UI_enhancements" target="_blank">a game mod for Guild Wars</a>.  You might possibly be able to argue that ArenaNet, makers of Guild Wars could have a copyright claim (maybe, sorta), but that's not who sent the notice and it's not what they claimed it was.  Sutherland notes that he set up this MediaFire account solely to host game mods and has never hosted any other content there.
<br /><br />
So, who sent the DMCA takedown?  Dtecnet.  And, as you can see from the messy, messy DMCA notice below, they tried to takedown a huge list of files.  If Sutherland's experience is anything to go by, you have to wonder how many of them are actually infringing.
<br /><br />
Of course, we've seen plenty of bogus DMCA takedowns.  It happens all the time.  But this one is doubly important, because it's from DtecNet, a division of MarkMonitor.  MarkMonitor/Dtecnet also just happen to be the company providing the key monitoring for the new "six strikes" Copyright Alert System (CAS).  The Center for Copyright Information has a web page on its site about an <a href="http://www.copyrightinformation.org/resources/independent-expert-assessment-of-markmonitor-antipiracy-methodologies/" target="_blank">"independent expert assessment"</a> of MarkMonitor's antipiracy methodologies.  Except... that page is completely blank.  Perhaps, if they're looking to do an analysis, figuring out why they're taking down content that has nothing to do with what they claim would be a good place to start.
<br /><br />
Good thing the CAS works entirely based on accusations, without needing to show any proof at all, huh?<br /><br /><a href="http://www.techdirt.com/articles/20130224/22341022086/system-used-new-six-strikes-cas-falsely-identifies-game-mods-as-nbc-tv-shows.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130224/22341022086/system-used-new-six-strikes-cas-falsely-identifies-game-mods-as-nbc-tv-shows.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130224/22341022086/system-used-new-six-strikes-cas-falsely-identifies-game-mods-as-nbc-tv-shows.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>this-is-going-to-be-a-disaster</slash:department>
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<pubDate>Tue, 5 Feb 2013 11:31:09 PST</pubDate>
<title>How Much Does HBO Pay MarkMonitor To Send DMCA Notices Removing Its Official Content From Google?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130205/03124421884/how-much-does-hbo-pay-markmonitor-to-send-dmca-notices-removing-its-official-content-google.shtml</link>
<guid>http://www.techdirt.com/articles/20130205/03124421884/how-much-does-hbo-pay-markmonitor-to-send-dmca-notices-removing-its-official-content-google.shtml</guid>
<description><![CDATA[ We've seen plenty of ridiculous stories about bogus DMCA takedowns, but none get so ridiculous as the ones in which the content being demanded taken down is the officially released content.  This often happens because of shoddy / clueless middlemen, as is the case with the latest example being passed around.  HBO hired DtecNet / MarkMonitor to keep infringing copies of its works offline, and as TorrentFreak notes, the company sought to achieve this by sending a DMCA takedown notice to Google that <a href="http://torrentfreak.com/hbo-wants-google-to-censor-hbo-com-130203/" target="_blank">demanded the removal of links to HBO's own website</a> (as well as links to legitimate sites that included reviews of the show in question, <i>Eastbound and Down</i>).
<center>
<a href="http://imgur.com/1p1bP1i"><img src="http://i.imgur.com/1p1bP1i.png" width=560 /></a>
</center>
Again, this kind of thing seems to happen all the time, once again confirming the key point that despite all the talk by maximalists that Google should just "know" when a work is infringing, copyright holders' <i>own representatives</i> have absolutely no clue at all, and that should weigh against the idea that Google or any other third party might magically know.
<br /><br />
My real question, though, is just how much is HBO paying DtecNet / MarkMonitor for this "service"?  Not only is it making a complete mockery of HBO itself, but potentially killing search engine optimization value that HBO might have towards its legit and authorized content.
<br /><br />
Also, isn't it comforting that DtecNet / MarkMonitor are going to be the ones responsible for going after people under the new six strikes program?  Stories like this really add confidence to the idea that they're going to make a complete mess of the whole thing.<br /><br /><a href="http://www.techdirt.com/articles/20130205/03124421884/how-much-does-hbo-pay-markmonitor-to-send-dmca-notices-removing-its-official-content-google.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130205/03124421884/how-much-does-hbo-pay-markmonitor-to-send-dmca-notices-removing-its-official-content-google.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130205/03124421884/how-much-does-hbo-pay-markmonitor-to-send-dmca-notices-removing-its-official-content-google.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>and-why-does-this-keep-happening</slash:department>
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