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 Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Vampire Bible Copyright Owners Send Copyright Infringement Claim to Google (NoticeID 574, http://chillingeffects.org/N/574) Printer-friendly version

Vampire Bible Copyright Owners Send Copyright Infringement Claim to Google

February 18, 2003

 

Sender Information:
VampireTemple.com
Sent by: [Private]
[Private]
Lacey, WA, 98509, US

Recipient Information:
[Private]
Google, Inc.


Sent via: fax
Re:

Google, Inc.
Attn: Customer Support, DMCA Complaints
[Private]
Mountain View, CA 94043

A. The copyrighted work at issue is our original work as SOLD by us IN PRINTED FORM ONLY to Purchasers is [sic] www.vampiretemple.com and specifically
http://www.vampiretemple.com/vault/vb_book.html

2. The URL of the site I claim is using our 1989 registered copyright work is found by the search query: "vampire bible"

Infringing Web Pages (from search result number 4, dated 1996/08/07 "The Vampire Bible [Part two} [sic]"):

http://groups.google.com/group?s=vampire+bible&hl=en&lr=&ie=UTF-8&safe=off&selm=4uai7O%24
7j5%40cpca3.uea.ac.uk&rnum=4

Newsgroups with this message listed were: alt.out-of-body, alt.paranormal, alt-satanism, alt.evil, alt.magick, alt.magick.chaos, alt.gothic, alt.christnet

Message-ID: <4uaj70$7j5@cpca3.uea.ac.uk

3. You may contact me at [Private] or [Private]

4. The search query from the poster name "Shadowen" on each Newsgroup produced the following websites; with the same infringing material as well also:

alt.out-of-body.cypher, alt.paranormal, alt.satanism, alt.magick, alt.magick.chaos, alt.gothic, alt.christnet

http://groups.google.com/groups?hl=en&lr=&ie= UTF-8&safe=off&threadm=dThHtIAiwYDyEwm%40stormy.demon.co.uk &rnum=2&prev=/groups%3Fq%3Dshadowen %2Bgroup:alt.satanism.*%26hl%3Den%26lr%3D%26ie%3DUTF-8%26safe %3Doff%26selm%3DdThHtIAiwYDyEwrn%2540stormy.demon.co.uk%26rnum%3D2

http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&safe=off&selm=4uai7O%247j5%4Ocpca3.uea.ac.uk

alt.evil

http://groups.google.com/groups?hl=en&lr= &ie=UTF-8&safe=off&threadm=dThHtIAiwYDyEwrn %40stormy.demon.co.uk&rnum=106&prev=/groups%3Fq %3Dshadowen%26start%3D100%26hl%3Den%26lr %3D%26le%3DUTF-8%26safe%3Doff%26selm %3DdThHtIAiwYDyEwm%2540stormy.demon.co.uk%26rnum%3D106


http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&safe=off%selm=4uaj70%247j5%40cpca3.uea.ac.uk

alt.magick, alt.magick.chaos

http://groups.google.com/groups?hl=en&lr= &ie=UTF-8&safe=off&threadm=309134352wnr %40gothicl.demon.co.uk&mum=4&prev=/groups%3Fq %3Dshadowen%2Bgroup:alt.magick.chaos%26hl%3Den%26lr%3D%26ie %3DUTF-8%26safe%3Doff %26selm%3D309134352wnr%2540gothic1,demon.co.uk %26rnum%3D4

http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&safe=off&selm=4uai70%247j5%40cpca3.uea.ac.uk

alt.gothic

http://groups.google.com/groups?hl=en&lr= &ie=UTF-8&safe=off&threadm=309134352wn r%4Ogothicl.demon.co.uk&rnum=12&prev=/groups %3Fq%3Dshadowen%2Bgroup:alt.gothic.*%26start%3D10%26hl%3Den%26lr %3D%26ie%3DUTF-8%26safe%3Doff%26selm %3D309134352wnr%2540gothic1.demon.co.uk%26rnum%3Dl2

http;//groups.google.com/groups?hl=en&lr=&ie-.=UTF-8&safe=off&selm=4uai70%247j5%40cpca3.uea.ac.uk

5. I have a GOOD FAITH BELIEF that use the of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

6. I swear, under penalty of perjury, that this information in the notification is accurate, and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Sincerely,

[Private]
Lacey, WA 98509
[Private]

PS A copy of the above letter is being sent by postal mail to you as well. Thank you.

image

 
FAQ: Questions and Answers

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Question: What are the DMCA's anti-circumvention provisions?

Answer: The Digital Millennium Copyright Act (DMCA) is the latest amendment to copyright law, which introduced a new category of copyright violations that prohibit the "circumvention" of technical locks and controls on the use of digital content and products. These anti-circumvention provisions put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works.

The DMCA contains four main provisions:

  1. a prohibition on circumventing access controls [1201(a)(1)(A)];
  2. an access control circumvention device ban (sometimes called the "trafficking" ban) [1201(a)(2)];
  3. a copyright protection circumvention device ban [1201(b)]; and,
  4. a prohibition on the removal of copyright management information (CMI) [1202(b)].

The first provision prohibits the act of circumventing technological protection systems, the second and third ban technological devices that facilitate the circumvention of access control or copy controls, and the fourth prohibits individuals from removing information about access and use devices and rules. The first three provisions are also distinguishable in that the first two provisions focus on technological protection systems that provide access control to the copyright owner, while the third provision prohibits circumvention of technological protections against unauthorized duplication and other potentially copyright infringing activities.


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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 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: 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: 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: What kinds of things are copyrightable?

Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.


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Question: Can search engines be liable for copyright infringement by providing hyperlinks to search results?

Answer: Some Internet search engines have been getting "takedown" requests under the Digital Millennium Copyright Act, Section 512 (see DMCA Safe Harbor for more information). The DMCA provides a safe harbor to information location tools that comply with takedown notices, but it is not settled whether they would be liable for copyright infringement if they did not use the safe harbor. Arguably, computer-generated pages of links do not materially facilitate infringing activity or put their hosts on notice of copyright infringements.


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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: What constitutes copyright infringement?

Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission:

1. reproduce (copy) the work;

2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression);

3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a);

4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here.


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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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