Chilling Effects
Home Weather Reports Report Receiving a Cease and Desist Notice Search the Database Topics
Sending
Topic HomeFAQsMonitoring the legal climate for Internet activity
Chilling Effects
 Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Pearson Hopes to Take Down Re-Posting of Beck Hopelessness Scale (NoticeID 671363, http://chillingeffects.org/N/671363) Printer-friendly version

Pearson Hopes to Take Down Re-Posting of Beck Hopelessness Scale

October 25, 2012

 

Sender Information:
NCS Pearson, Inc.
Sent by:
Director, Intellectual Property Protection


San Antonio, Texas, 78259, US

Recipient Information:

bOING bOING


USA


Sent via: email
Re: Removal Request of Copyrighted Material

Mr. Frauenfelder:

I represent NCS Pearson, Inc. (Pearson), which you are aware is the
exclusive publisher of the BECK HOPELESSNESS SCALE (BHS), which is a
secure test instrument restricted to purchase by qualified
individuals. The BHS is an original work of authorship registered
with the United States Copyright Office.

It has recently come to Pearson’s attention that you
are hosting web site that contains an unauthorized reproduction of the
BHS. The unauthorized reproduction is contained on a blog posted
10/15/2012 at 4:15 pm by your member corydodt and includes the items.

The reproduction, display, and distribution of the material at the
online location infringe Pearson’s copyright in the BHS because the
test items are reproduced and displayed on the online location without
Pearson’s permission. As such, the web blog you are posting clearly
infringes U.S. Copyright law. See 17 U.S.C. 512(d).

LOCATION OF INFRINGEMENT

The location of the infringement is at:

http://boingboing.net/2012/10/15/pearsons-takedown-notice-ove.html

NOTICE OF TAKE DOWN

The purpose of this letter is to advise you of Pearson’s rights and to
seek your agreement to (1) remove and destroy the copyrighted
material; and (2) disable or remove any hyperlink(s). Please note
that the disabling or removing of Pearson’s copyrighted material from
this site should include destroying the usefulness of any textual
directory or pointer information contained therein. PLEASE NOTE: We
are only requesting removal of the BHS as it is contained in that blog
post. We are not asking or requesting removal of any other material.

Please confirm in writing that you have complied with the above request.

RESERVATION OF RIGHTS

Pearson reserves its position insofar as costs and damages caused by
the unauthorized reproduction and/or display of the BHS and any
information locating tools with respect to online locations engaged in
infringing activity. Pearson also reserves its right to seek
injunctive relief to prevent further unauthorized activity,
particularly any information locating tools, pending your response to
this letter. We suggest you contact your legal advisors to obtain
legal advice as to your position.

VERIFICATION

The information contained in this notification is accurate as of the
time of compilation and, under penalty of perjury, I certify that I am
authorized to act on behalf of NCS Pearson, Inc.

We await your response within 24 hours.

Sincerely,


/[redacted]/


[redacted]

Director, Intellectual Property Protection

Clinical Assessment

Pearson


[redacted]

San Antonio, TX 78259

T: [redacted]
F: [redacted]
E: [redacted]@Pearson.com


Pearson

Always Learning
Learn more at www.psychcorp.com

 
FAQ: Questions and Answers

[back to notice text]


Question: Why does a web host or blogging service provider get DMCA takedown notices?

Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users." This safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials its users post, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

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)].


Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.


Question: Does a service provider have to follow the safe harbor procedures?

Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.


Question: How do I file a DMCA counter-notice?

Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.

For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.


[back to notice text]


Question: What may be copyrighted?

Answer: In order to be copyrightable, a work must be

1. fixed in a tangible medium of expression ; and
2. original.

Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C.


[back to notice text]


Question: What defenses are there to copyright infringement?

Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C.


Topic maintained by Chilling Effects

Topic Frequently Asked Questions (and Answers)
Chilling Effects Clearinghouse - www.chillingeffects.org
disclaimer / privacy / about us & contacts