Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Telemarketing supplier complains to Google of copyright, trademark infringement (3) (NoticeID 2153, http://chillingeffects.org/N/2153)

Location: https://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=2153

Telemarketing supplier complains to Google of copyright, trademark infringement (3)

July 07, 2005

Sender Information:
Database Systems Corp.
Sent by: [Private]
[Private]
Database Plaza
Phoenix, AZ, 85014-271, US

Recipient Information:
User Support, Google DMCA Complaint
Google, Inc.
Mountain View, CA, 94043, USA

Sent via: fax
Re:

dATAbASE

User Support:

This is our formal complaint against the website owner whose sites are currently listed in your search engine index. We believe these sites are presenting false and misleading content and is infringing on our copyrighted website information. We request that you review these sites and remove them from the Google search results.

Our Copyrighted material is located here: http://www.databasesystemscorp.com

The offending websites and pages containing our copyright material are listed below. All of these pages re-direct users to different pages within the different websites, thus the content of the pages viewed by the user is not what the Google search engine sees when it spiders these pages. Our content is not maintained on the user viewed pages, only on the spidered pages. (the user viewed pages contain virtually identical content other than the language).

www.vocalcom.ca
www.phonetic.fr
www.vocal.com.br

BACKGROUND

The following documents the copyright infringement and false promotion and misrepresentation by the owner of the following websites. The website owner is a
foreign corporation headquartered in Paris, France, but has offices in the US. The US office address and phone number are included above.

The 2 identified web pages listed above contain our copyrighted information

Each of the above websites and pages include an archived copy (taken from our website in 2004) of our copyrighted website information maintained on the HOME page of Database Systems Corp.

http://www.databasesystemscorp.com

A. copy of this archive can be provided if necessary but it is sufficiently close enough in content to our current veision for a reasonable person to deduce that the content in the vocalcom.com and callcentersolution.com web pages was derived from this archive. VocalCom attempted to perform a global change of our name to theirs but failed to change OUR phone number contained in these offending pages.

VocalCom appears to have used several different re-directed page formats, each one containing copyrighted information from our HOME page. The following are links to the Google cache of these pages as of 10 July 2005.

http://66.102.7.104/search?q=cache:pOJdraSZM7oJ:www.vocalcom.ca/+site:www.vocalcom.ca&hl=en&lr=&strip=1

http:/166.102.7.104/search?q=cache:vWOkGGkg21AJ:www.phonetic.fr/+&hl=en &lr=&strip=1

http://66.102.7.104/search?q=cache:f6F5SmFAKr8J: www.vocalcom.com.br/+site:www.vocalcom.com.br/+pacer&hl=en&lr=&strip=1

EXAMPLE OF GOOGLE SEARCH

The following is one example of how this website owner is falsely representing VocalCom. PACER Predictive Dialer is a registered product of Database Systems Corp. There are no duplicates or conflicting names in the market. When using the Google Search Engine and entering the search term "Pacer" the following results are displayed for the above mentioned websites. The information displayed in the descriptions of each of these search results is copied directly from our website and contains copyrighted information belonging to Database Systems Corp.
Search Results From July 10, 2005
NOTE: All of the text that appears in the snippets with each search result is a verbatim copy from our website.

[Screenshots]

Our website information is found here: http://www.databasesystemscorp.com
""This computer telephony software "opens" our PACER predictive dialers to outside applications."
The above text appears in the center of our HOME page listed above
Note the verbatim copying from our website that appears in the VocalCom search results. They clearly have copied our copyrighted information.
If the visitor clicks on any of these search results, they are immediately REDIRECTED to a different URL than what is listed in the Google search results.
These pages appear to be identical in content. A copy of the Google cache of one of the result pages (www.vocalcom.com) is included above.
The following is a sample of the information found in the cache of the VocalCom web page. This information is verbatim from the archived HOME page of Database Systems Corp. including our copyrighted material. Vocalcom did a global change of their name over ours but failed to change our listed phone number in the text.
"Telemation, our contact management CRM software solution, has been our flagship product for a number of years. It is a CRM (Customer Relationship Management) software tool that empowers our users with the ability to create telemarketing and CRM applications and call center software. Installed in call centers throughout the country, Telemation set the standard for power and flexibility throughout the contact center community. With rich contact management software features and computer telephony integration including predictive dialing and predictive dialer software, our CRM software has powered both inbound and outbound centers for more than a decade. Wlth our unique ACD call routing system, agents can work in a traditional call center or from home."
"The PACER phone system is a PC based call center phone system that is recognized as one of the premier inbound and outbound computer telephony systems. Features such as automatic call distribution (ACD), interactive voice response (IVR) and call recording have added a new dimension to the predictive dialer and auto dialer capabilities of this system. The PACER IVR System with Text To Speech software acts as a stand-alone solution that is ideally suited for ACD and IVR outsourcing. Our computer telephony software and softphone opens this phone system to outside applications and developers. When combined with our Customer Relationship Management CRM software, the PACER predictive dialers and IVR systems are complete call center software solutions. And our new SMART Predictive Dialers revolutionize predictive dialing. Your call center can become instantly more productive with more calls handled by fewer agents, including work at home employees. Our predictive dialers far outpace old predictive dialer technology "

"Contact VOCALCOM at (602) [private] to learn more about our call center software, phone systems and predictive dialers with phone dialer software"
and

"Contact phonetic at (602) [private] to learn more about our call center software, phone systems and predictive dialers with phone dialer software."
This extract demonstrates that VolcalCom knowingly and deliberatedly copied our copyrighted website information including our products PACER, TELEMATION and registered Corporate name DATABASE SYSTEMS CORP. This text is hidden from the search user (other than the snippet displayed with the search result), but the effect is to fool a search engine into associating the keywords contained in our copyright content with their websites. This copying was not authorized by our company.

To the searcher, it appears that VocalCom is the provider of the "PACER Predictive Dialer" when in fact they are not.

Trademark and Copyrighted Material

Our corporate trademarks are clearly posted on our website here with effective dates and reference numbers:

http://www.databasesystemscorp.com/trademarks.htm

OUR COMPANY INFORMATION

Database Systems Corp., Arizona Corporation
[private]
Phoenix, AZ 85014
(602)[private]

Founded: 1978
Owners: Paul R. Gillman, Jerry A Pizet

Websites

http://www.databasesystemscorp.com (Corporate) http://www.easyivr.com (Service Division) http://www.911broadcast.com (Emergency Broadcast Svc)

Our complaint has been lodged against the following organization: VocalCom (US Office)
[private]
Chicago, IL 60606
Tel : 1 [private] [private]@vocalcom.com

REPRESENTATIONS

I represent that I am an owner of this company and websites and am fully authorized to pursue this matter.

I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law

I swear, under penalty of perjury, that the 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.

My contact information is the following:

[private]
President, Database Systems Corp.
[private]
[private]@yahoo.com
[private]@databasesystemscorp.com

DESIRED ACTION FROM GOOGLE

Since this company is listed in the Google Search Results and is providing false and misleading information as well as displaying our copyrighted product and company data, we respectfully request that you remove all of the above sites from your search engine. At a minimum, please remove the specific pages to these websites which contain our trademarked information.
Since this website owner is employing banned search engine spamming techniques (re-directed false front pages), we also recommend that these sites be banned from the Google Search Engine.

Thank you again for your attention to this matter.

[Signature]
Sincerely,
[private]
President
Database Systems Corp.
(602) [private]

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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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