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 Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Scientology Complaint to Google (#2) (NoticeID 252, http://chillingeffects.org/N/252) Printer-friendly version

Scientology Complaint to Google (#2)

April 09, 2002

 

Sender Information:
Religious Technology Center and Bridge Publications
Sent by: [Private]
Moxon & Kobrin
Los Angeles, Californi, 90010, US

Recipient Information:
[Private]
Google, Inc.
Mountain View, Californi, 94043, USA


Sent via: email
Re: Scientology Complaint to Google #2

From: [private]
Date: Tue, 9 Apr 2002 19:10:58 EDT
Subject: Notice of Infringement under the Digital Millennium Copyright
Act www.clambake.
To: [private]
CC: [private]

Dear [private]:

In this particular matter our office represents Religious Technology Center ("RTC") and Bridge Publications, Inc. ("BPI").

It is well known that Google is a service provider directory that links users to an online location. Pursuant to its Terms of Service, Google also prohibits the use of its service to link to web sites which contain infringing material. I refer you to 17 U.S.C. 512(d) of the DMCA which provides that an internet service provider is protected from liability,


"by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider . . .

(3) upon notification of claimed infringement . . . responds
expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except for purposes of this paragraph . . . the information [for notification] shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link."

17 U.S.C. 512(d). See also, Universal City Studios, Inc. v. Reimerdes, 111
F.Supp.2d 294 (S.D.N.Y. 2000), where the court held that posting hyperlinks to other web sites that were in violation of the DMCA, itself violated the DMCA.

Currently, Google is providing a link to a web page which contains literally hundreds of our clients' copyrighted works. This web site is "www.clambake.org" I have attached a Chart for you setting forth each of the infringements that are contained on the "www.clambake.org" web site and proof of our clients' ownership of the works in question.

This particular web site owner has placed our clients' copyrighted works on his web page without the authorization of our clients. Accordingly, his actions are in violation of United States copyright law and I request Google either remove or disable access to the web site, "www.clambake.org".

The Search Query used is: Scientology
Infringing Web Page: www.clambake.org

I have a good faith belief, and in fact know for certain, that the posting of these works was not authorized by my clients, any agent of my clients, or the law.


I declare under penalty of perjury that this information is accurate and that I am authorized to act on behalf of RTC and BPI in this matter.

Sincerely,
[private]
Moxon & Kobrin
[address]
Los Angeles, California 90010
Tel: [private]
Fax: [private]

 
FAQ: Questions and Answers

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Question: What are the DMCA Safe Harbor Provisions?

Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.


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Question: Does a service provider have to notify its users about its policies regarding the removal of materials?

Answer: To qualify for exemption under the safe harbor provisions, the service provider must give notice to its users of its policies regarding copyright infringement and the consequences of repeated infringing activity. [512(i)(1)(A)] The notice can be a part of the contract signed by the user when signing up for the service or a page on the service provider's web site explaining the terms of use of their systems. While there are no specific rules about how this notice must be made, it must be "reasonably implemented" so that subscribers and account holders are informed of the terms. [512(i)(1)(A)]


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Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?

Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512.

There are four major categories of network systems offered by service providers that qualify for protection under the safe harbor provisions:

  • Conduit Communications include the transmission and routing of information, such as an email or Internet service provider, which store the material only temporarily on their networks. [Sec. 512(a)]
  • System Caching refers to the temporary copies of data that are made by service providers in providing the various services that require such copying in order to transfer data. [Sec. 512(b)]
  • Storage Systems refers to services which allow users to store information on their networks, such as a web hosting service or a chat room. [Sec. 512(c)]
  • Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)]


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Question: What does a service provider have to do in order to qualify for safe harbor protection?

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].


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Question: What is contributory infringement?

Answer: The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy.

Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe.

To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity.


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Question: What is vicarious liability?

Answer: Vicarious liability, a form of indirect copyright infringement, is found where an operator has (1) the right and ability to control users and (2) a direct financial benefit from allowing their acts of piracy. User agreements or Acceptable Use Policies may be evidence of an operator's authority over users. The financial benefit may include a subscription fee, advertising revenues, or even a bartered exchange for other copyrighted. Under the doctrine of vicarious liability, you may be found liable even if you do not have specific knowledge of infringing acts occurring on your site.


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Question: What is a hyperlink?

Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link


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Question: What are the notice and takedown procedures for web sites?

Answer: In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

  • The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
  • The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
  • Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
  • A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.


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Question: If a hyperlink is just a location pointer, how can it be illegal?

Answer: It probably isn't, however, a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material:

  • In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. (See Anticircumvention (DMCA).) The court ruled that it could regulate the link because of its "function," even if the link was also speech.
  • In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work's copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.)
By contrast, the court in Ticketmaster v. Tickets.com found that links were not infringements of copyright.

Like anything else on a website, a hyperlink could also be problematic if it misrepresents something about the website. For example, if the link and surrounding text falsely stated that a website is affiliated with another site or sponsored by the linked company, it might be false advertising or defamation.

Finally, post-Grokster, a hyperlink might be argued to induce copyright infringement, if the link were made knowing that the linked-to material was infringing and with the intent of inducing people to follow the link and infringe copyright.

In most cases, however, simple linking is unlikely to violate the law.


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Question: What rights are protected by copyright law?

Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.


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Question: Does a copyright owner have to specify the exact materials it alleges are infringing?

Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials. [512(c)(3)(iii)], [512(d)(3)]. The provisions also require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)]. Rather than simply sending a letter to the service provider that claims that infringing material exists on their system, these qualifications ensure that service providers are given a reasonable amount of information to locate the infringing materials and to effectively police their networks. [512(c)(3)(A)(iii)], [512(d)(3)].

However, in the recent case of ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. The relaxation of this specificity requirement shifts the burden of identifying the material to the service provider, raising the question of the extent to which a service provider must search through its system. OSP customers should note that this situation might encourage OSP's to err on the side of removing allegedly infringing material.


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Question: Is all copying piracy?

Answer: No. Copyright gives the owner exclusive rights to reproduce, adapt, publicly distribute, perform and display their work. Nonetheless, the law allows "fair use" of copyrighted material. Fair use permits, in certain circumstances, the use or copying of all or a portion of a copyrighted work without the permission of the owner. Copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider, in part:
(1) the purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes);
(2) the nature of the copyrighted work (giving creative works more protection than factual works);
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (including size and quality- i.e. Does the portion represent the "heart" of the work); and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Courts balance these factors, placing an emphasis on the fourth, however rulings have been unpredictable. Parody may be protected by fair use where the user is actually making a comment on or criticism of the copyrighted material, even if a profit is made from the use. Still, distributing copyrighted software will rarely be fair use because people will use those copies instead of buying the software from the legitimate vendor.


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Question: What are the counter-notice and put-back procedures?

Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

  • The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
  • Identification of the material and its location before removal [512(g)(3)(B)]
  • A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
  • Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]

See also How do I file a DMCA counter-notice?, and the counter-notification generator.


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