Church of Scientology Takedown Notice

Sender Information:
Church of Scientology via WebsiteSource.com
Sent by: -
-

[back to notice text]

Answer: The federal Copyright Act may be found at http://www.loc.gov/copyright/title17/.

[back to notice text]

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:

1. the purpose and character of the use
   
2. the nature of the copyrighted work
   
3. the amount and substantiality of copying, and
   
4. the market effect.
   

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.

[back to notice text]

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.

[back to notice text]

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

[back to notice text]

Answer: Many people confuse the two, but copyright infringement and plagiarism are different concepts. Plagiarism occurs when a dishonest writer, or some other person, copies another's words or ideas without attributing them to the true author. Black's Law Dictionary 1170 (7th ed.1999). With plagiarism, it does not matter whether the words are copyrighted

[back to notice text]

Answer: No. ISPs can take down material according to the DMCA anytime they receive a compliant notice alleging copyright infringement (see What are the notice and takedown procedures for we...?). The ISP does not have to investigate to determine whether the material was truly infringing before taking it down. The fact that someone has claimed infringement does not prove that infringement occurred -- there might be a fair use defense, or the claim might have been false or even frivolous.

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 of the DMCA 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 OSP for any damages that resulted from the improper removal of the material. [512(f)]

[back to notice text]

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.

[back to notice text]

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.

[back to notice text]

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]

Answer: No. Copyright protects only expression, not ideas. So while copyright might protect one author's description of a bookkeeping method, it does not prevent others from using the method or copying the forms needed to use it.

This "idea/expression dichotomy" is spelled out in part in the Copyright Act's Section 102(b):

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

[back to notice text]

Answer: The federal Copyright Act may be found at http://www.loc.gov/copyright/title17/.

[back to notice text]

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

[back to notice text]

Answer: There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at (17 U.S.C.

[back to notice text]

Answer: Copyright protects original works of authorship fixed in a tangible medium. Copyright does not protect facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. 17 U.S.C.

[back to notice text]

Answer: Filing a counter-notification indicates that the subscriber has a "good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled." [15 U.S.C. s 512(g)(c)(3)] A counter-notification also requires a statement that the subscriber consents to the jurisdiction in which the address of the subscriber is located. [17 U.S.C. s 512(g)(3)(D)]

Thus, the filing of a counter-notification does not explicitly indicate consent to defend against a claim of copyright infringement; it merely indicates a good faith belief that the challenged material is non-infringing. An individual who believes that a user has infringed or is infringing upon his or her copyright may sue the user for infringement regardless of whether a take-down notice is sent to the service provider. The safe-harbor rules provided under 17 U.S.C. Sec. 512 do not affect the right of a lawful copyright holder to sue a user who directly infringes his or her copyright.

[back to notice text]

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.

[back to notice text]

Answer: No. Copyright infringement actions do not require that you actually knew that the files were protected by copyright or that your use of the files violated federal law. Claims of ignorance cannot be used as a defense to direct copyright infringement, Lack of knowledge, is, however, a defense to contributory infringement. See What is contributory infringement?

[back to notice text]

Answer: The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor).

[back to notice text]

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.

[back to notice text]

Answer: Notice whether the letter came from an Internet Service Provider (ISP) and not from the copyright owner. The Digital Millenium Copyright Act both protects ISPs from copyright liability (leaving the end user with that liability) and requires ISPs to participiate in a "takedown" process when copyright owners claim infriging use. See the FAQs associated with this notice for more information.

[back to notice text]

Answer: Unlicensed use or distribution of copyrighted works is illegal and may be considered a criminal act. Copyright law grants the exclusive right to use, copy, distribute, display and perform a copyrighted work to the owner of the copyright. The owner of the copyright is the only entity that may grant permission for anyone to use, copy, distribute, display and perform the work.

[back to notice text]

Answer: No. Nothing in the DMCA requires the reciever of a take-down notice to notify the sender of the action it takes regarding the notice. The DMCA only requires a service provider to notify the subscriber that the material has been removed or access to the material has been disabled, in cases where the allegedly infringing material is residing on the network controlled or operated by service provider at the discretion of the subscriber. [17 U.S.C. 512(g)(2)(A)]

[back to notice text]

Answer: Works are copyrighted as soon as they are "fixed in a tangible medium of expression," but some legal rights and remedies are available only if the work's copyright is registered. To find a copyright registration, you may search copyright records at the Copyright Office website, but be aware that not finding a match does not mean the work is uncopyrighted.

[back to notice text]

Answer: Under the Copyright Act, penalties for copyright infringement can include:

1. an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works
   
2. impounding or destruction of infringing copies
   
3. damages -- either actual damages and the infringer's profits, or statutory damages
   
4. costs and attorney's fees
   

A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412)

[back to notice text]

Answer: Black's Law Dictionary defines perpetuity as "the state of continuing forever." So in this context the writer of the cease and desist letter is trying to make the recipient agree never to post to the mentioned websites ever again.

[back to notice text]

Answer: An injunction is "A court order commanding or preventing an action. * To get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted... [A]permanent injunction [is] [a]n injunction granted after a final hearing on the merits. * Despite its name, a permanent injunction does not necessarily last forever."

[back to notice text]

Answer: An injunction is "A court order commanding or preventing an action. * To get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted... [A]permanent injunction [is] [a]n injunction granted after a final hearing on the merits. * Despite its name, a permanent injunction does not necessarily last forever."