Video Stream DMCA (Copyright) Complaint to Google
April 13, 2011
MLB Advanced Media, L.P.
New York, NY, 10011, US
Google, Inc. [AdSense]
Mountain View, CA, 94043, USA
Sent via: fax
Re: Notice of Violation of Google AdSense Program Policies
We write to inform you of a violation of the Google AdSense Program Policies, which also severely affect our rights. According to the AdSense Program Policies, "Sites displaying Google ads may not include:... Any other content that is illegal, promotes illegal activity, or infringes on the legal rights of others."
MLB Advanced Media, L.P., ("MLBAM") is the exclusive licensee of the MLB Entities with respect to uses via the Internet and other interactive media of their game and exhibition telecasts and excerpts thereof (collectively, "MLB Telecasts"). MLBAM has received information that a Google AdSense partner, www.rojadirecta.es (the "Website"), is still distributing and displaying, without authorization, copyrighted works of MLBAM, the Office of the Commissioner of Baseball, and/or certain Major League Baseball Clubs (collectively, the "MLB Entities") despite our notifying you of this violation on April 5, 2011. (See Exhibit A attached hereto for an example.) The Website streams live copyrighted MLB Telecasts when games are occurring. The unauthorized distribution of such copyrighted works is an infringement of the applicable MLB Entity's copyrights in them, in violation of the U.S. Copyright Act and other applicable law.
The copyright owner of the MLB game telecasts are the applicable MLB Entities. I have a good faith belief that this use is not authorized by the copyright owner, its agent or the law. The information in this notice is accurate, and I hereby certify under penalty of perjury that I am authorized to act on behalf of the MLB Entities, the owner(s) of the copyrights in the works identified above. I have a good faith belief that none of the materials or activities listed above have been authorized by the MLB Entities, their agents, or the law.
I may be contacted at
MLB Advanced Media, L.P.
New York, NY 10011
We appreciate your cooperation in this matter. Please advise us regarding what actions you take. This letter does not purport to be a complete statement of the applicable facts or law and is submitted without prejudice.
Very truly yours
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|FAQ: Questions and Answers|
[back to notice text]
Question: Why does a search engine get DMCA takedown notices for materials in its search listings?
Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(d), a safe-harbor for providers of "information location tools." These 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 users' materials it links to, 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.
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