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Toyota Demands Removal of Fan Wallpapers
Posted by
Soulskill
on Sun Nov 16, 2008 09:16 AM
from the see-what-sticks dept.
from the see-what-sticks dept.
An anonymous reader writes "TorrentFreak reports that Toyota's lawyers have recently contacted computer wallpaper site Desktop Nexus in a blatant example of DMCA abuse. Toyota issued a blanket request to demand the immediate removal of all member-uploaded wallpapers featuring a Toyota, Lexus, or Scion vehicle (citing copyright violation), regardless of whether Toyota legally holds the copyright to the photos or not. When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."
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Submission: Toyota Abuses DMCA with Computer Wallpaper Site by Anonymous Coward
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just wow (Score:4, Funny)
In a related move Toyoda.... (Score:5, Funny)
Re:In a related move Toyoda.... (Score:5, Funny)
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Re:In a related move Toyoda.... (Score:5, Interesting)
Go look at the founder's name, then stop apologizing for the slip :D
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Re:In a related move Toyoda.... (Score:5, Interesting)
Indeed - Toyota is actually an intentional misspelling, because of the number of strokes for the Japanese characters being luckier or something. It'd be like Henry Ford calling his company the Fort Motor Company, because the word sounded better.
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Whats the point...? (Score:5, Insightful)
Re:Whats the point...?-Free ads. (Score:5, Informative)
Still, until Toyota says "We own the copyright on image 11684.jpg, 11689.jpg" and mentioning other image explicitly on the website, all the site owner has to say is:
"We were not served a proper DMCA take-down notice, and as such we were unable to fill the request."
The judge would look at the invoice and throw the thing out. The DMCA notice has to be done in writing, be specific, and allow for a response if the copyright is being questioned or challenged. None of this is happening, and it would be Toyota that would have egg on its face if they really tried to follow through with this tactic.
Still, as far as the free advertising is concerned, once copyright is clearly established and can be legitimately claimed by Toyota, proper notices have been filed and the law has been followed, the images have to go.
Unless.... you are claiming "fair-use" privileges for the use of the image of the vehicle.... so the whole thing starts all over again in another round of legal maneuvering. Fair-use here might actually be valid, depending on who took the image and in what context it is being used.
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Re:Allow me to supply you with a Slashdot analogy (Score:5, Funny)
no you have him prosecuted for assault, serve him with a dmca/performance violation if he used the "staying alive" trick and then sue him for trespassing.
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just to ease the progress of the streisand effect: (Score:5, Interesting)
Yeahh (Score:5, Interesting)
Re:Yeahh (Score:5, Funny)
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Toyota and Sony. (Score:5, Insightful)
Is any more evidence required for average people to avoid these 'too large for their own common sense' companies?
Pathetic (Score:5, Insightful)
Directly attacking the fans who are providing free advertising of your product is about as stupid as it gets.
Re:Pathetic (Score:5, Funny)
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Re:Pathetic (Score:5, Funny)
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Re:Pathetic (Score:5, Insightful)
I would argue that protecting ones trademarks and copyrights would include taking the time to file specific and correct DMCA requests even if that meant enumeration what items you were interested in for the requestee. It would be like me knocking on my neighbors door and saying
Dude I know some of the stuff in your yard can't possibly be allowed by our community bylaws. Can you please go research them and get back to me, then naturally you will have to get compliant.
It seems to me if I have an problem with something someone else is doing it falls to me to at least identify what that is in a specific an actionable way and determine if its at least reasonably possible I have the force of law on my side before I bother them or a court with my complaint.
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Re:Pathetic (Score:5, Insightful)
This isn't about trademarks here. The website owner isn't (yet) disputing the use of the trademark, nor is the website owner attempt to sell a similar product (aka an automobile) using that trademark.
Yes, trademarks have to be defended according to U.S. law, but there isn't a trademark infringement going on here.
Besides, the DCMA doesn't cover trademark usage... it only applies to the use of copyright.
The issue with the "New Zork Times" is that the "New York Times" certainly does sound similar, and the purpose of the "New Zork Times" was for something "related" to journalism... aka it was for a similar product. Branding is important, and Infocom in this case tried to make the "newspaper" appear in a format similar to the better known commercial organization as well. Again, this doesn't relate to the above incident.
Trademarks aren't copyright protected. The form and styling of the vehicle, however, might be considered a "work of art" and as such have tertiary copyright status such as when you attempt to take a photo of a statue or other 3-D work of art. It depends largely on the context, but clearly this website is using the vehicle as the focus of the image and it certainly could be argued that the vehicles are being admired as works of art. As they should be in many cases.
Some (not all) of the images also appear to be from official Toyota publications and/or photographers hired under contract by Toyota. The copyright status of these images is much more clear-cut.
Still, there is no reason to even comply (or even respond) to letters or notices that don't give specifics regarding what images are out of compliance and what aspect of the copyright status is being asserted here. They can't just ask you to shut down your website.
It is even more insane to shoot the fans here, who are hyping up and adding "buzz" to their products. This is "free" advertising of the kind that most marketing groups salivate over and only could wish they could get. The lawyer/marketing genius needs to get fired by Toyota for even considering the thought of going after these guys.
If the website was offering images of Toyota cars blowing up, in crashes, covered with blood, or appearing in a negative light, that could be something more of a concern. Instead, they (Toyota) should be grateful that they aren't being charged for this "service". Heck, their P.R. guys should be uploading more photos to this website.... particularly after this has received some huge attention through slashdotting and other blog posts.
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Re:Pathetic (Score:5, Interesting)
The sad thing is, this might even be a case of one division of the company not knowing what another division is doing. Lets assume the stupidest possible case. Toyota marketing possibly HAS uploaded to that site and now Toyota legal is harassing them for copyright infringement.
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The path is clear. (Score:5, Insightful)
Ignore the notice. It's clearly not properly formed, and should provide great evidence, should Toyota decide to start suing this guy.
Will Fail (Score:5, Informative)
I remember reading about similar "cases" in the past, although they were not DMCA related. Anyway, the courts threw out the plaintiffs because the items being photographed were not considered "art". Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.
Toyota could only be right if the images they specify were TAKEN BY TOYOTA. And that could be difficult to prove. If they claim ALL the images on the site belong to them and the operators of the site KNOW that some/all/most of the pictures were not taken by Toyota, then I think the whole request is bogus.
Yet another example of abuse of the legal system. If it ever makes it to court, I would hope the site operators counter-sue and win BIG. But I think that is the whole point- such cases rarely make it to court, big businesses just use the DMCA as a weapon to scare smaller entities into complying.
Re:Will Fail (Score:5, Informative)
Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.
What has that got to do with anything?
Mass production doesn't matter, nor does uniqueness. While some, including myself, might want authorial intention to be relevant, it currently doesn't matter. And what it was sold as doesn't matter.
What it boils down to is that the manufacturer can claim that the parts of the car photographed are copyrighted works, most likely sculptural works (most cars don't seem to come from the manufacturer with pictures painted on them). The counterargument is that copyright excludes the useful portions of sculptural works, and where the useful and non-useful portions are inseparable, the entire work is excluded. This is the utility doctrine. There are numerous tests for determining whether or not various features are separable, most likely because no one has ever managed to come up with a sufficiently good test for people to rally around, and it's all largely based on rationalizing gut instinct.
One noteworthy example of the utility doctrine being used was in Brandir [altlaw.org], where the creator of those undulating bike racks [ribbonrack.net] tried to get a copyright because he had forgotten to get any kind of patent before the deadline for applying for a patent expired. IIRC, he lost, and anyone can make those racks.
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Re:Will Fail (Score:5, Interesting)
What is what makes this sentence in the article so bizarre: "The site's owner, Harry Maugans contacted Toyota to clarify. He was told that all images featuring Toyota vehicles should be removed, even images with copyright belonging to others." If that sentence is true, Toyota is admitting it does not hold the copyright to others' images of Toyotas, yet still claiming the right to control copying!
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Bill and bill alike. (Score:5, Interesting)
" When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor.""
And then he invoices Toyota for complying with each and everyone of them to the tune of the same dollar amount their bill is. Two can play this game.
More likely a trademark infringement notice (Score:5, Informative)
Invoice won't fly (Score:5, Interesting)
If they receive a proper DMCA notice and remove the offending files then they have no further liability under the law. Toyota is blowing smoke; this is just a typical lawyer scare tactic that has no basis in law.
Actually, Toyota could be the one billed should Desktop Nexus comply. By demanding that Desktop Nexus identify for Toyota the offending files, one might argue that Toyota was hiring them as a contractor to fulfill Toyota's obligation under the DMCA. To cover themselves, Desktop Nexus should send a proposal to Toyota offering to identify and remove the offending photos, to the best of their ability (thus not guaranteeing to find them all), for, say, $1000 each.
Invoices mean nothing (Score:5, Insightful)
Just because somebody sends you an invoice doesn't mean that you have to pay it.
This, in fact, is a common scam technique, where somebody will send to a small business some sort of random invoice (sometimes to larger businesses) demanding payment for some random "service" that has been provided.
They (Toyota) should know full well that if they actually take legal action to collect on these invoices, that they would be thrown out of court.
But of course that does mean you have to appear in court (often not in a convenient venue) and defend why you have refused to pay on the bill if you are refusing payment.... and you have to give formal notice to the person submitting the invoice that you dispute the terms of service.
Still, if I were running this website, I would refuse payment as the DCMA is quite clear about what the law is here in terms of legal requirements to take down photos or "copyrighted content".
At the same time, who "owns the copyright" on a picture of a Lexis or other vehicle is something that can be debated in court. Yes, the photographer who made the image in the first place has rights, as does the property owner (if it wasn't in a "public" place). The physical structure of the vehicle itself can also be considered "a work of art"... which is what I guess Toyota is trying to do here. So yeah, they do have a slight point even if Toyota didn't physically take the photo.
Still, this is a P.R. nightmare and something most companies don't want to either bother with or are usually tickled that somebody is promoting their product over and above their competitors. Frankly, rather than demanding a take-down of the pictures, they ought to be sending professionally looking pictures with full republication and distribution rights granted.
Easy (Score:5, Funny)
Don't remove the images!
Simply hide the cars under a big "CENSORED BY TOYOTA".
Toyota has no legal case (Score:5, Insightful)
While we're at this spread the word to all major news network and let them broadcast the clip for a few minutes in evening news (or better yet, put that in the Morning section of Headline News). Let's see who is the ultimate winner here.
O boy (Score:5, Funny)
What a hideous crimes people commit these days. Poor Toyota, they must have lost millions of dollars because of these wallpapers. I mean, publishing a song on the internet, ok, it's bad, but a whole car?! Don't these people have any sympathy for a poor carmaker?
Will my next car be a Lexus? (Score:4, Interesting)
However, in lieu of Toyota's errant behavior and its refusal to keep its lawyers in check for something that only promotes their product, I might consider making my next purchase with one of their competitors instead.
I would that that, especially in these tumultuous financial down-times, that Toyota and other companies like them would rather enhance their customer loyalty base rather than diminish it.
So, Toyota, kudos for a great product line, but a thumbs down on your PR with your loyal customers.
Can they actually bill for this? (Score:5, Interesting)
I thought that a DMCA notice *required* actual specifics of infringing content. Its part of what you have to do when you file a notice. Claiming that your are going to force someone to pay you so that you have to comply with the law seems patently (no pun intended) ridiculous. If your client wants this action done, they pay you (the lawyer) to do what is necessary.
I get the feeling that the mere fact that they refuse to follow the rules without trying to extort money from the 'defendant', will get them a well deserved legal slap in the face
not a DMCA notice (Score:5, Informative)
At least not according to the article [torrentfreak.com]:
This issue is discussed in a Lessig book (Score:5, Informative)
In one of his books, Lawrence Lessig discusses how manufacturers of furniture and other goods have been claiming copyright protection for their goods if they appear in movies. Moviemakers have been needing to go through an elaborate process of copyright clearance for objects that appear in their movie scenes. This has applied even if the movie scene is intended to be of someone's room as it is in real life.
This claim by Toyota is the same kind of thing. It looks like they are claiming copyright protection for the appearance of their cars if used in something that is reproduced. Presumably a police car chase or a major accident, if the car involved is a Toyota product, would require copyright clearance by Toyota to be shown on TV.
This is carrying the law to its ridiculous extreme.
Good Timing (Score:5, Interesting)
This couldn't have come at a better time, from my point of view. I'm in the market for a new car. My current car is a Toyota (2000 Celica). My last car was a Toyota. So was the one before that (an '83 Tercel hatchback, as a matter of fact). While still under warranty, the top half of the Celica's engine had to be replaced. It hasn't given me any trouble since (beyond having an appetite for headlights I find a bit disturbing), but somehow it's never enjoyed the same place in my heart as the others.
For the first time in more than 20 years, I've thought about looking for a new car somewhere besides a Toyota lot. Competitors (even North American ones) have come a long way in the last few years. They now offer the kind of quality and reliability I expect in a car, so there's a lot less reason to pay premium bucks to Toyota. And Toyota parts, when you need them, cost a LOT.
This incident has made up my mind. Toyota is off my list, and won't receive further consideration. It's exactly the kind of crap I hate: a corporate bully with deep pockets slaps average people across the face, not because there's any compelling reason to do so, but just because it can.
For once, in a small way, I'm in a position to slap back. My next car won't be one of theirs, nor the one after that...and so on. I'll also have a word with family and friends who may be leaning toward their product: buy elsewhere, help starve a corporate thug.
By the way, if you reach a similar decision, please feel free to pass this little note on to your local Toyota dealer. I certainly intend to, probably the next time the dealership sends me one of those irritating, "we value your business" letters.
Re:those people are obviously freaks (Score:5, Funny)
You are stealing LIGHT, which is owned by Toyota, you copyright thief you!
What I'd like someone to do is to produce a DMCA takedown order for Toyota on a piece of clothing that is worn by an actor in one of Toyota's ads.
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Re:those people are obviously freaks (Score:5, Insightful)
What I'd like someone to do is to produce a DMCA takedown order for Toyota on a piece of clothing that is worn by an actor in one of Toyota's ads.
It would be better to serve them an order to remove all ads containing clothes for copyright violation and then invoice them when they ask you to indicate which ads are violating copyright.
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Re:those people are obviously freaks (Score:5, Funny)
I am intrigued by your ideas and wish to subscribe to your newsletter.
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Re:its just a car. (Score:5, Funny)
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Re:its just a car. (Score:5, Funny)
It's like if a person published some photos of cars, and the car manufacturer demanded that they be removed.
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Lawyers'jokes write themselves theese days. (Score:5, Informative)
We see this nonsence all the time. Compagny lawyers who think they have a case completely ignoring if it will benefit or hurt their client to do so. More often than not, resorting to legal-bullying of ordinary people unwilfully brushing on your precious IP, is a terrible way to make a brand.
Every time I see the name (beginning with the letter D) of a very large maker of animated movies - the very first thing I think about, is how back in 2003 their legal vigilantes bullied a local musical into changing it's name from Rubber-Tarzan(translated) into Rubber-T. The name of the musical is the same as the title of the 1975 chilrens book that it's based on - while apparently the name Tarzan somehow became trademarked in 1999.
Legal experts say [insert name of litigous company here] would most likely loose the case - but the musical does't have the money to go to court, so they had to bend. It's impossible to imagine how [D.....] was damaged by a musical performance of a childrens book from 1975 not related to the animated movie - but their brand is irreparably damaged in the minds of countled danish parents (read prime costumers).
If you are a 500 pound gorilla, you have to be very nice to be viewed as likeable.
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Re:its just a car. (Score:5, Insightful)
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Re:its just a car. (Score:5, Interesting)
... he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."
My first reaction was, "What idiot laywers, no court would award them that. Maybe they hope that the website won't spend the money to fight them." But I thought about it for a few seconds, and if the onus is on the infringer to make sure that they are not infringing, then it makes sense for them to be billed.
I'm not saying it is the responsibility of the infringer to be sure they're not infringing, but if that's the case, then it's a little easier to see where this seemingly crazy statement actually came from.
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Re:its just a car. (Score:5, Insightful)
... he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."
My first reaction was, "What idiot laywers, no court would award them that. Maybe they hope that the website won't spend the money to fight them." But I thought about it for a few seconds, and if the onus is on the infringer to make sure that they are not infringing, then it makes sense for them to be billed. I'm not saying it is the responsibility of the infringer to be sure they're not infringing, but if that's the case, then it's a little easier to see where this seemingly crazy statement actually came from.
Except the site owner isn't the infringer and the DMCA makes sure they can not be treated as such.
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Re:its just a car. (Score:5, Informative)
A few points:
1. The DMCA states the copyright holder has to generate the list.
2. There is no infringer. There is an alleged infringer. Forcing the alleged infringer to do the work requires a presumption of guilt.
3. In this particular case, the infringer doesn't even come into it. They are trying to bill the safe harbor.
Of course, per TFA, Toyota hasn't made this a DMCA case. They haven't really made any claims at all, just a demand that he remove any images of these vehicles.
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Re:its just a car. (Score:5, Interesting)
The court will bill the infringer. It'll just be called an award for damages instead of an invoice. The site isn't the infringer, though; the person who posted the content is (in general, not arguing whether there's any infringement in this particular case).
If posting pictures of an automobile that I own is infringement does that mean Toyota can sue municipalities who use red light cameras for copyright infringement? ;)
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Re:its just a car. (Score:5, Informative)
But I thought about it for a few seconds, and if the onus is on the infringer to make sure that they are not infringing, then it makes sense for them to be billed.
It would if that were the case, but it isn't.
Toyota's begging for a wrongful prosecution case in this one. They really don't have a leg to stand on, saying they'd invoice for identifying their "copyrighted" works. And here's why:
* Copyright probably doesn't apply. If I take a picture of my car (an American-made Chevrolet, FWIW), then the copyright of the photograph belongs to ME. And even if copyright DOES apply (wallpaper made from images made by Toyota), the DMCA still requires Toyota to identify which images are in the wrong. "All those that contain Toyotas" would require the website to review each image -- which the DMCA excludes them from having to do, by way of requiring them to remove any so-identified image.
* Patent law -- where you really do have to work to avoid infringement! -- doesn't apply to photographs. You can describe in great detail anything protected by patent -- you just can't make/use that thing without the patent holder's permission.
* Trademark law -- which, again, DOES require you to do some legwork -- only protects against diluting uses. Fan-created walpapers incorporating Toyoyta's trademarks as a way of expressing preference for Toyoyta? At best, they can force a disclaimer on them.
(Note: this is not Legal Advice. If Toyota comes after YOU, get a lawyer to determine the specifics. You might have entered into a contract, live in a strange country, the laws might have changed, or I could be completely wrong.)
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Re:its just a car. (Score:5, Interesting)
My 30 year old pickup, 100% stock, passes California emission tests with flying colours.
Last time I discovered something important, tho -- the readings depend FAR MORE on how clean the test equipment is, than on your vehicle.
In 2006, at a popular test station with well-used equipment, my truck BARELY passed, and then only because the tester knew all the tricks (there are ways to goose marginal vehicles into compliance).
In 2007, at a rarely used and brand-spanking-clean test station, my truck passed with emission levels at only about 1/3rd what the other station's tests showed, without any jiggery-pokery either.
My truck had absolutely NO work, NO tuning, no NOTHING done to it between the two tests, other than an oil change.
You gotta wonder how many billions of consumer dollars have been wasted by dirty test equipment. :(
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Re:its just a car. (Score:5, Insightful)
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Re:its just a car. (Score:5, Insightful)
i don't want my car to fragment on impact. I want my car to protect me, no matter what Detroit says about crumple zones, i will never drive a car that is designed to fail.
Oh. So rather than having the crash energy absorbed by predictable crumple zones you'd rather have it focus straight into the passenger compartment and into your body and brain. Well, I suppose it's one example of Darwinism.
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Re:its just a car. (Score:5, Funny)
It happens like come on a car. A lot of people mistake it for bird shit, but only you know what happened last night between you and that stray dog.
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