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 Chilling Effects Clearinghouse > DMCA Notices > Notices > Polo Ralph Lauren Bops BoingBoing Over Ad Post (NoticeID 28998, http://chillingeffects.org/N/28998) Printer-friendly version

Polo Ralph Lauren Bops BoingBoing Over Ad Post

October 02, 2009

 

Sender Information:
PRL USA Holdings, Inc.
Sent by:
Greenberg Traurig LLP


New York, NY, 10166, US

Recipient Information:

BoingBoing, via Priority Colo


Toronto, ON, M5J 2N1, Canada


Sent via: Email and FedEx
Re: DMCA Infringement Notification

Dear Sir or Madam:

This law firm represents PRL USA Holdings, Inc. ("PRL"). PRL creates and publishes advertising materials designed to market and advertise its collections of apparel (the "Advertisements"). PRL owns all right, title, and interest in the original images that appear in the Advertisements under United States and Canadian copyright law, and has not authorized anyone else to display this content. We have discovered that BoingBoing, a blog hosted by Priority Colo ("you") at the URL , has reproduced and displayed one of the advertisements (the "Infringing Image") without PRL's authorization. A print-out from displaying the Infringing Image is attached hereto as _Exhibit A_, and should be sufficient to allow you to positively identify the Infringing Image on the website. The Infringing Image is located at:

http://www.boingboing.net/2009/09/29/ralph-lauren-opens-n.html

The undersigned has a good faith belief that use of the material in the manner described herein is not authorized by PRL USA Holdings, Inc., its agents, or the law. Under penalty of perjury, the undersigned represents and is authorized, with respect to this matter, to act on behalf of PRL USA Holdings, Inc., the owner of the exclusive copyrights described above, and believes the information in this notice to be accurate. As such, we ask that you remove this infringing material.

[Legal Assistant - Register.com]

Please be advised that this letter is not intended as a complete statement of facts or law as they pertain to this matter. PRL reserves all rights and remedies.

Very truly yours,

GREENBERG TRAURIG, LLP

[signature]
[private], Esq.

Enclosure
cc: PRL USA Holdings, Inc.

 
FAQ: Questions and Answers

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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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Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:


  1. the purpose and character of the use
  2. the nature of the copyrighted work
  3. the amount and substantiality of copying, and
  4. the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.


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Question: Do I need permission from the copyright holder to make fair use?

Answer: No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).


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Question: What types of uses does the fair use doctrine protect?

Answer: The language used by Congress in Title 17, Section 107 specifically lists


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