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 Chilling Effects Clearinghouse > DMCA Notices > Notices > Title DMCA (Copyright) Complaint to Digg (NoticeID 196637, http://chillingeffects.org/N/196637) Printer-friendly version

Title DMCA (Copyright) Complaint to Digg

January 10, 2012

 

Sender Information:
Pennyborn Planning
Sent by: [Private]
Law Office of Susan Y. Campbell



Recipient Information:

Digg, Inc.


CA, USA


Sent via: email
Re: Cease and Desist Notice of Trademark and Copyright Infringement

To Whom It May Concern,

I represent Pennyborn Planning, the owner of the trademark "Pennyborn"
and the website "Pennyborn.com". Digg.com is unlawfully infringing on
Pennyborn Planning's trademarks and infringing its copyrighted works.
Specifically, Digg.com is using the Pennyborn trademarks and the titles
of copyrighted articles from Pennyborn.com to obtain search ranking
results for the following web page:
http://digg.com/news/story/Free_Memorial_Planner_for_Last_Wishes_Final_Arrangements

Digg's webpage, as shown above, uses the Pennyborn.com trademark but
does not actually link from its use of the trademark to the
Pennyborn.com website, even though the Pennyborn trademark is
highlighted on your site as if it is a hypertext link. This is a clear
and willful violation of Pennyborn's trademarks and the goodwill
Pennyborn Planning has in such marks. Furthermore, Digg.com has
attempted to mislead the public by making it appear it is associated
with Pennyborn.com when in fact no such association exists. Finally,
Digg.com is infringing one of Pennyborn Planning's valuable copyrighted
works, the Free Memorial Planner.

In addition, Digg.com improperly lists the title of approximately 10
copyrighted articles from Pennyborn.com on its site without providing a
link from the trademark Pennyborn to the Pennyborn.com site. Again,
your listing of these 10 articles shows the Pennyborn.com trademark
highlighted yet no hypertext link to the site exists as required.
_*You have ten (10) days from the date of this notice to remove all of
the following from Digg.com and any affiliated sites operated or owned
by your parent company and any subsidiaries: 1) the mark "Pennyborn" and
the domain name "Pennyborn.com" where ever they appear on your web
sites; and 2) The title of all Pennyborn.com articles and web pages
listed on your website. *_

If you do not comply with this request within the time period outlined
above, the matter will be forwarded to outside trademark counsel for the
filing of a Complaint along with a claim for compensatory and punitive
damages.

Sincerely,
[redacted]
Law Office of Susan Y. Campbell
[redacted]
Mission Viejo, CA 92692
Telephone: [redacted]

CONFIDENTIALITY NOTICE: This e-mail transmission
and any attachments contain confidential
information from The Law Office of Susan Y.
Campbell, which may be protected by the attorney-
client privilege and/or the work product
doctrine. If you are not the intended
recipient, you may not read, copy, use or
disclose this information. Please notify the
sender immediately by reply e-mail and delete
this message. Thank you.

 
FAQ: Questions and Answers

[back to notice text]


Question: Why does a web host or blogging service provider get DMCA takedown notices?

Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users." This 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 materials its users post, 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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