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| Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Wooden train company gets squirrelly over alleged infringement (NoticeID 1714, http://chillingeffects.org/N/1714) | Location: https://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=1714 |
February 28, 2005
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Sender Information: |
Recipient Information:
[Private]
Google, Inc.
Mountain View, CA, 94043, USA
Sent via: Fax
Re: [#21927291] Google DMCA Complaint
Dear Google Team, Here is the additional information you requested to support my copyright infringement claim filed with you by fax on 2/23/05. To give you a little background, I sell wooden toy trains on my website. Our primary customers are parents buying for their 3-6 year old children. In 2003 I wrote a series of "Information and Ideas" pages to give our customers and visitors information useful in purchasing and playing with wooden toy trains. One of our competitors overhauled his website sometime after I wrote these pages (my best guess is in late 2004 or 2005) and took substantial portions of my work 1) to attract and retain customers, 2) to generate sales at his website, and 3) to increase his site's perceived value in hopes of bettering his standing on sites such as Google. In some search queries his site ranks higher than my site by improperly using my information. Additionally, the same material was improperly taken for use in articles by "[Private]" on a site called Article Insider (http://trains.articleinsider.com/71547_wooden_train_accessories.html). That page and a number of others on the site supposedly give independent, unbiased information about play with wooden trains, but in fact link directly to my infringing competitor's site. I am collecting information to file a DMCA complaint with Google on the Article Insider site pages and will file those complaints later this week. Infringing Web Pages found in various searches on Google: www.woodentracks.com/brio_compatible.htm BY FAX, PAGE 2 OF 6
The copyrighted work at issue is the text that appears on www.squirreltracks.com/basics/basics.html and www.squirreltracks.com/layouts/layouts.html
www.woodentracks.com/wooden_toy_train.htm www.woodentracks.com/wooden_train_set.htm www.woodentracks.com/wooden_train_accessories.htm
The following text is from http://www.squirreltracks.com/basics/basics.html and was written and copyrighted by me in 2003.
= original text for which I claim copyright =
What does "BRIO-compatible" mean?
Wooden trains that ride on wooden tracks have been around for almost 70 years. Many manufacturers now make such trains and almost all of them make their trains to conform to the Vario-System so that consumers can mix and match and enjoy complete compatibility and interchangeability. The most famous manufacturer of wooden trains is BRIO
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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:
Question: What is the Digital Millennium Copyright Act? 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). Question: What are the communication requirements that Section 512 imposes on OSPs, complainants, and alleged infringers? Answer: Each of the parties -- the complainant, the Online Service Provider (OSP), and the alleged infringer -- has the right to communicate with the other parties. In addition, OSPs and complainants are required to engage in certain communications in order to take advantage of the DMCA's notice-and-takedown and safe harbor provisions. (For more information about the process see FAQ 130.) The complainant starts the Sec. 512 process by notifying the Online Service Provider (OSP) or the OSP?s agent in writing of a copyright infringement. (See [FAQ 127 for more information about what constitutes an OSP and FAQ 450 for more information about what constitutes copyright infringement.) Section 512(c)(3)(A)(iii) sets out the requirements for notice to OSPs. Under this section, the complainant must specifically identify the material that is claimed to be infringing or to be subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. The complainant is not required to contact the alleged infringer at any time. [§ 512(h)(5).] However, complainants who do wish to contact the infringer, or to file suit on an infringer, may use the Sec. 512(h) subpoena process to require an OSP provide its customers? identifying information to the complainant. The OSP has two separate sets of communication obligations. First, the OSP is generally required to establish policies regarding copyright infringement and repeat infringers and to inform subscribers and account holders about those policies as well as about the actions taken against repeat infringers. [§ 512(i)(1)(A).] This applies both to Sec. 512(c) ISPs and Sec. 512(d) information location tools. Second, once an OSP receives a Section 512 takedown notice, either one, Sec. 512(c) ISPs or Sec. 512(d) information location tools, is required to notify its subscriber that it has disabled access to the allegedly infringing material. [§ 512(g)(2)(A).] A recipient is not required to respond in any way to Sec. 512 notices from OSPs or complainants. However, without a recipient response, the OSP will generally remove or disable access to the material, possibly even disabling an ISP account. To avoid this, the recipient may file a counter-notification with the OSP, denying that the material infringes copyright. [§ 512(g)] If an OSP receives a counter-notification, then the service provider must notify the complainant that it will cease disabling access in 10 business days unless the complainant obtains a court-imposed restraining order. [§ 512(g)(2)(C)] Question: What is copyright infringement? Are there any defenses? 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:
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. Question: Who may hold a copyright? Answer: A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C. Question: What may be copyrighted?
Answer:
In order to be copyrightable, a work must be Question: Does copyright protect words or short phrases? Answer: No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be "original works of authorship" under the Copyright Act. Names may be protected by trademark, in some instances. See the Trademark FAQ for more information. 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 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. Question: What defenses are there to copyright infringement? Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C. 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. Question: How can I find out whether a work has a registered copyright? 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. Question: What defenses are there to copyright infringement? Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C. Question: I Answer: That depends. Does the second book use the same expression as used in your book? If so, and that expression is minimally creative, you may have an action for copyright infringement. If not, the problems will probably treated as uncopyrightable products of a mathematical, predictable distribution of the pieces on the board based on principles of play. In an old case, an author of a book on contract bridge sued a newspaper for printing a bridge problem that he claimed was substantially similar to a problem contained in his book. The court held that the author had Question: What is copyright infringement? Are there any defenses? 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:
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. 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: 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. 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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