Telemarketing Supplier Complains to Google of copyright, trademark infringement (7) -- Chilling Effects Clearinghouse

Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Telemarketing Supplier Complains to Google of copyright, trademark infringement (7) (NoticeID 2166, http://chillingeffects.org/N/2166)

Telemarketing Supplier Complains to Google of copyright, trademark infringement (7)

July 13, 2005

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

Recipient Information:
[Private]
Google, Inc.
Mountain View, CA, 94043, USA

Sent via: fax
Re:

User Support:

This is our formal complaint against the website owner of thephonexx.biz whose site is found in Google search results. We believe this site is infringing on our copyrighted website information. We have written the owner of this website and requested the removal of the offending web pages. The owner has not responded to our demand. We request that you review this website and remove it.

(1) Our Copyrighted material is located here:

http://www.easvivr.com
http://www.databasesystemscorp.com/psvbroadcast.htm http://www.databasesystemscorp com/provoice.htm

(2) The offending website pages that contain our copyright material are located here:
http://thephoenixx.biz/id173.htm
http://thephoenixx.biz/id175.htm
http://thephoenixx.biz/id177.htm
http://thephoenixx.biz/id172.htm

BACKGROUND

The following documents the copyright infringement and false promotion and misrepresentation by the owner of the above site.
The owner of the above website has taken our copyrighted material from our above referenced webpages and placed them on his website. He has also used our registered names including PACER phone system, WIZARD phone system and website names EasyIVR and company name Database Systems Corp. He also has kept links on these pages (when he copied them) to our website to our sample voiceover talent without our authorization or approval.

GOGGLE SEARCH RESULTS

The following is an example of how this website owner is using our copyrighted material. EasyIVRTM is a registered product of Database Systems Corp. When using the Google Search Engine and entering the search term "EasyIVR", Google returns 1 results from this specific website. The information displayed in each search result contains our copyrighted material from our web site and is not authorized. The following are just a few snippets taken from our web pages and that appear in these Google search results for this site.

Voice Broadcasting Service and Systems
Welcome to EasylVR, the IVR hosting and phone answering service plus voice broadcasting center for The Phoenixx. (DSC). IVR refers to Interactive Voice ... thephoenixx.bizlidl72.htm - 9k - Cached - Similar pages

Note that the web designer replaced our company name with his, but forgot to change the company initials DSC (Database Systems Corp.). Here is the information contained on our HOME page for www.easyivr.com:

"Welcome to EasyIVR, the IVR hosting and voice broadcasting center for Database Systems Corp. (DSC). IVR refers to Interactive Voice Response - we provide both turnkey IVR systems and complete business phone services using our award winning IVR technology and facilities."

Their web page is copied verbatim from our HOME page www.easyivr.com.
Search using our product names PACERTM and WIZARDTM returns the following results with Google:

Types of Voice Broadcast Campaigns
The PACER can perform all types of outbound dialing including predictive dialers and ... The PACER IVR/Voice Broadcasting system fully supports XML Push ... thephoenixx.bizJid175.htm - 25k - Cached - Similar pages

Interactive Voice Broadcasting Systems

We can provide you with a complete turnkey PACER or WIZARD Voice Broadcast phone system. If you need to get a project or campaign started immediately, ... thephoenixx.biz/id173.htm - 14k - Cached - Similar pages

The above two pages were copied verbatim from our website page below. The following information is maintained in our product page:

www.databasesystemscorp.com/psvbroadcast.htm

"The PACER IVR/Voice Broadcasting system fully supports XML Push client/server applications. Application servers can now send XML protocol messages to our PACER phone system to automatically dial a number and play a recorded message."
"We can provide you with a complete turnkey PACER or WIZARD Voice Broadcast phone system. If you need to get a project or campaign started immediately, we can also provide your organization voice broadcast outsourcing at our own voice broadcasting call center."

Search using Professional Voice Talent returns the following results with Google:

Voice Overs and Voice Over Talent

We've compiled a few professional voice talent samples from which you can ... Professional Voice Talent. Multi-lingual support. Music On Hold Services ... thephoenixx.biz/id177.htm - 31k - Cached - Similar pages

The following information is maintained in our product page: www.databasesystemscorp.com/provoice.htm
"We've compiled a few professional voice talent samples from which you can choose. Click on any of the following names to hear their demos. Remember which voice over talent sample you prefer when contacting us for your professional voice recording."

thephoenixx.biz/id177.htm is virtually an identical page copied from our website INCLUDING links to our website voice over talents.

TRADEMARK LISTINGS

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

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

(3) OUR COMPANY INFORMATION

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

(4) Offending Website Owner

The Phoenixx Corporation ([private])
[private] Huntsville, AL 35801
Phone: [private]

REPRESENTATIONS

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

(5) 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

(6) 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 displaying our copyrighted website material and product and company data, we respectfully request that you remove this site from your search results. Thank you for your prompt attention to our prior filings and we would appreciate your attention to this matter as well.

Sincerely,

[private]
President
Database Systems Corp. [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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