Cease and desist letter response

[justalayman]

I never realized it was such a huge issue. Wow.

 

[quincy]

By "insanely" and "overly", I meant that Sony has a penchant for claiming copyright and trademark violations for things that don't violate either. I'm not overstating that; the company with one of the dirtiest histories of consumer rights abuses is also one of the biggest abusers of overly broad DMCA and VERO takedowns.

The NFL catches a lot of flak as the "No Fun League" for aggressively protecting their properties (and for some questionable rule changes throughout the years), and "Who Dat?" was certainly in the realm of Sony's daily activities, but I don't put them or Disney in the same class with Sony. There's a huge difference between actively pursuing justice (in the majority of cases) and lazily blanketing the planet with takedowns and demand letters that have no relevance at all.

Several of the largest media companies are, in my opinion, far worse than Disney and approaching the level of Sony in this respect. Lenz v. Universal is representative of the "injured class". That automated systems are used to send millions of takedowns makes sense; no human-operated system could possibly handle the workload necessary. What's most telling to me is that neither Sony nor Universal ever issues an "oops, sorry", even when they're clearly, wholly in the wrong.

If there were no infringers, there would be no reason for trademark holders and copyright holders to take such aggressive measures, though. These rights-holders have been forced into playing "bad guy" to protect their rights, only because they are successful companies that have made good products that people want. With that comes those nefarious few (or not so few ) who want to profit off the famous brands.

That said, I will always recommend to posters who come here for advice on infringement notices to seek out a personal review by an IP attorney. What has led to the receipt of the infringement notice, what they are creating or marketing for sale, might not be infringement at all and instead might just be the result of an over-zealous rights-holder asserting rights they do not really have.

Again, just like the cheaper makeup that is made with questionable ingredients or marketed under another's trademark, there is no easy way to stop the manufacture and flow of fake goods. People like to buy what is cheap.

 

[single317dad]

If there were no infringers, there would be no reason for trademark holders and copyright holders to take such aggressive measures, though.

quincy, you and I have found ourselves on opposite sides of this issue before, and while I will always respect your opinion, I will continue to assert my own: that two wrongs do not make a right, and the only true innocents in the equation are those falsely accused and in some way damaged by overzealous (that's being kind) enforcement. Not the software pirates, not the media pirates, not the IP thieves, not the content producers, not the patent holding companies, but the lady who uploads a video of her baby dancing and spends 8 years in court defending it.

I know, it's a very Bernie Sanders-esque kind of populist world view, and as someone who leans Libertarian it's hard to reconcile, but I support a free market and the rights that make it possible to do business so long as those never, ever encroach on the rights of an individual. People always first, businesses always second, then the freedom to make their profits. That doesn't mean people should be allowed to steal from businesses; it means that businesses should be held equally accountable for their actions, and that's not something that happens currently.

These rights-holders have been forced into playing "bad guy" to protect their rights, only because they are successful companies that have made good products that people want. With that comes those nefarious few (or not so few ) who want to profit off the famous brands.

I don't disagree with that at all. Disney wouldn't be the center of so many of these lawsuits if they didn't produce content that people wanted to see.

That said, I will always recommend to posters who come here for advice on infringement notices to seek out a personal review by an IP attorney. What has led to the receipt of the infringement notice, what they are creating or marketing for sale, might not be infringement at all and instead might just be the result of an over-zealous rights-holder asserting rights they do not really have.

That some teenage friends who create a (completely non-infringing, and in no way questionably infringing) viral video in their basement and now have to find some way to afford lawyers to defend themselves against UMG is a travesty; that is happens pretty regularly even more so. While there absolutely must be (and certainly is!) protection for rights holders, there should also be protection for those falsely accused and burdened by not just the initial DMCA and VERO takedowns, but some rogue company's continued prosecution.

Again, just like the cheaper makeup that is made with questionable ingredients or marketed under another's trademark, there is no easy way to stop the manufacture and flow of fake goods. People like to buy what is cheap.

Ain't that the truth. Wal-Mart proves this every day, and that's a completely different rant I go off on from time to time

 

[quincy]

quincy, you and I have found ourselves on opposite sides of this issue before, and while I will always respect your opinion, I will continue to assert my own: that two wrongs do not make a right, and the only true innocents in the equation are those falsely accused and in some way damaged by overzealous (that's being kind) enforcement. Not the software pirates, not the media pirates, not the IP thieves, not the content producers, not the patent holding companies, but the lady who uploads a video of her baby dancing and spends 8 years in court defending it.

I know, it's a very Bernie Sanders-esque kind of populist world view, and as someone who leans Libertarian it's hard to reconcile, but I support a free market and the rights that make it possible to do business so long as those never, ever encroach on the rights of an individual. People always first, businesses always second, then the freedom to make their profits. That doesn't mean people should be allowed to steal from businesses; it means that businesses should be held equally accountable for their actions, and that's not something that happens currently.



I don't disagree with that at all. Disney wouldn't be the center of so many of these lawsuits if they didn't produce content that people wanted to see.



That some teenage friends who create a (completely non-infringing, and in no way questionably infringing) viral video in their basement and now have to find some way to afford lawyers to defend themselves against UMG is a travesty; that is happens pretty regularly even more so. While there absolutely must be (and certainly is!) protection for rights holders, there should also be protection for those falsely accused and burdened by not just the initial DMCA and VERO takedowns, but some rogue company's continued prosecution.



Ain't that the truth. Wal-Mart proves this every day, and that's a completely different rant I go off on from time to time

I don't really disagree with you, single317dad, as much as I see both sides. I can accept more easily than you, perhaps, the position in which the rights-holders have been placed, where sending out cease and desist notices or pulling items from online sales has become necessary to protect their rights.

I think that Canada has taken an interesting direction with their new fair deal exemption to their copyright act and would hope the US could make some similar changes. Changes are needed but they are not easy to make. Here is a link to the exemption that Canada calls the "YouTube" exemption: http://laws-lois-justice.gc.ca/eng/acts/c-42/page-20.html

The US Customs and Border Protection just published their year-end forfeiture list - so people who want to claim items seized for having violated the law can attempt to do that. I am not sure too many of these seized items will find owners rushing to claim them.

justalayman said he did not realize what a huge problem it was - so here to round out my post are two additional links - the first to the January 1, 2016 Customs notification, and the second to the International Anti-Counterfeiting Coalition (IACC) with statistics.

US Customs and Border Protection forfeiture list: http://www.forfeiture.gov/pdf/CBP/OfficialNotification.pdf

IACC: http://www.iacc.org/resources/about/statistics




(University of Michigan is clobbering Florida in the Citrus Bowl right now - yay! - so my attention is not really on this post. I will correct any links later)