Back in November, we had the ridiculous story of Monster Cable almost certainly abusing the DMCA to takedown a classifieds search engine
called Jaxed. It appears that the company has done something similar yet again. The folks at Dealbert.net
, a "deals" search engine that searches various deals websites (FatWallet, SlickDeals, etc.), faced a takedown when Monster Cable's chief lawyer issued a DMCA takedown notice to Verizon (the full DMCA notice is included after the jump).
There are a bunch of problems with this. First of all, Dealbert is a search engine, pulling content from other sites. If there's really infringing works on those other sites, then the liability should be on those other sites. If you look at the Perfect 10 rulings
, the court noted that as a search engine, Google was not liable for what it found, and it seems that would likely apply to Dealbert as well (yes, the Perfect 10 ruling is technically only precedent in the 9th Circuit, but it's been cited elsewhere and is generally considered to be the law).
Second, nowhere does Monster Cable explain what actually infringes
and what copyright is infringed. The relevant part of the DMCA notice:
Under penalty of perjury, we hereby affirm that the undersigned is authorized to act on behalf of Monster Cable Products, Inc. whose exclusive copyright rights we believe to be infringed as described herein.
We have a good faith belief that the Internet site found at the following
infringes the rights of the Company by using Copyrights belonging to Monster Cable Products, Inc., including but not limited to: Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga.
A court would have to decide, but given that Monster Cable swore under the penalty of perjury, I would argue this sounds like perjury. It's claiming that its copyrights
are being infringed, but the only things it seems to identify -- Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga -- are all trademarks
, not copyrights.
Whether or not you believe that Dealbert infringed on Monster's trademarks, the DMCA does not cover trademarks
. It's for copyright only. Using the DMCA for non-copyrighted content, and claiming it is copyrighted is an abuse of the DMCA and could open up Monster Cable to significant fines, should Dealbert pursue the company in court.
On top of all this, rather than approaching Dealbert directly, Monster Cable went straight to Verizon, who at least was kind enough to pass the notice along to Dealbert, rather than simply pulling down the site. Dealbert's response has been to remove the content in question, because it doesn't want to risk having Verizon simply pull down its entire website.
However, it appears this is a gross abuse of the DMCA, by a company notorious for abusing IP laws. Historically, Monster has been quite aggressive over its trademarks
and occasionally patents
, but here it appears to be abusing copyright law by pretending its trademarks are copyright, and that the DMCA applies to them.