Faronics puts the Freeze on reverse engineering (#2) -- Chilling Effects Clearinghouse

Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Faronics puts the Freeze on reverse engineering (#2) (NoticeID 2084, http://chillingeffects.org/N/2084)

Faronics puts the Freeze on reverse engineering (#2)

June 23, 2005

Sender Information:
Faronics Technologies, Inc.
Sent by: [Private]
Chief Operating Officer
San Ramon, CA, 94583, US

Recipient Information:
User Support, DMCA Complaints
Google
Mountain View, CA, 94043, USA

Sent via: fax
Re: Case #28389705 - DMCA Infringement of Faronics Technologies Inc. Copyrighted Material

Re: Follow-up to case# 28389705
DMCA Infringement of Faronics Technologies Inc. Copyrighted Materials (aka "Deep Freeze")

Attn: User Support, DMCA Complaints:

Thank you for your prompt attention to our original request. We are pleased that Google is managing this problem effectively. However, since our original request, additional infringing links have appeared, and ask for your help. See Section (2) for the new detail.

Faronics Technologies Inc. ("Faronics") has identified material at several locations on the Web that represent a direct infringement of its copyrighted "Deep Freeze" security software and has determined that this material is not protected by the Fair Use or other protected provisions in Sections 107 through 122 of the Digital Millenium Copyright Act (DMCA). Pursuant to the Google Inc. ("Google") Terms of Service, which state in part:

"It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site, http://lcWeb.loc.gov/copyright/) and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity."

Faronics hereby requests that Google remove or disable access to material that is the subject of this infringing activity. As per Google's Infringement Notification policy in its Terms of Service, Faronics provides the following relevant information:

1. Copyrighted Work That Has Been Infringed

The copyrighted work that is the subject of this infringement is a software application produced and owned by Faronics, titled "Deep Freeze". The infringing party or parties have violated the Faronics Deep Freeze Master Software License Agreement ("MSLA") where the MSLA states, "The Product may not be modified, reverse engineered, decompiled, or disassembled." This violation is evidenced by the infringing material itself, collected by Faronics. Examples follow in Figures 1 through 4 that clearly describe how the infringing party has decompiled or disassembled, and in turn, modified our copyrighted material in violation of the MSLA.
[Screenshot]
Figure 1(above): Web Page at http://usuarios.arnet.com.ar/fliamarconato/pages/etutorial1.html describing intent of posted material.

[Screenshot]

Figure 2(ahove): Web page at http://usuarios.arnet.com.ar/fliamarconato/pages/etutorial1.html showing disassembly of Faronics copyrighted material and violation of the Faronics MSLA and in turn the DMCA by the site author.
Faronics
2. Material Infringing Copyrighted Work Listed In Item #1 Above

Search Queries:
"deep freeze" + unfreezer
hack deep freeze
hack "deep freeze"
"deep freeze" hack
deep freeze hack
unfreeze deep freeze
"Need to unfreeze Deep Freeze?"
Need to unfreeze Deep Freeze?
"This guy found a way to do it!"
Web pages containing infringing material: http://usuarios.arnet.com.ar/fliamarconato/pages/emain.html
Pages containing current links to infringing material:

www.dslreports.com/forum/remark,13216523
www.dslreports.com/forum/
www.securiteam.com/windowsntfocus/5XPOH1FGOS.html
www.securiteam.com/
www.casemodgod.com/cmq/ftopicz-5003.html
http://forum.pcstats.com/archive/index.php/t-19103.html
www.commentcamarche.pet/forum/ http://usuarios.arnet.com.ar/fliamarconato/pages/emain.html
www.opennet.ru/security/?skip=20
http://cyenerqy.info/daily archive.html http://usuarios.arnet.com.ar/fliamarconato/pages/smain.html
www.trucoswindows.net/foro/showtopic-21371.html
www.greyhats.info/
http://security.opennet.ru/base/ms/
www.securityexploit.info/ http://pub9.bravenet.com/forum/707468707/show/417504
http://forum.postats.com/archive/index.php/t-19103.html
http://www.casemodgod.com/cmq/ftopict-5003.html
Faronics Contact Address

Contact: [private], Chief Operating Officer
Faronics Technologies Inc.
[private]
San Ramon, California
USA 94583
Tel: [private]
[private]@faronics.com

Contacts for Owner/Administrators of Web Pages Containing Infringing Material

Host for :
http://usuarios.arnet.com.ar/fliamarconato/
owner: Arnet
responsible: [private]
address: [private]
address: 1425 - Buenos Aires - BA
country: AR
phone: +54 [private]
e-mail: [private]@ARNET.NET.AR

Statement of Good Faith

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.

Statement of Accuracy and Authority

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.

7. Signature
[private], Chief Operating Officer, Faronics Technologies Inc.

image

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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