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Censorship Your Rights Online

Toyota Demands Removal of Fan Wallpapers 594

Posted by Soulskill
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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Toyota Demands Removal of Fan Wallpapers

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  • by Zathain Sicarius (1398033) on Sunday November 16, 2008 @10:26AM (#25777147)
    All you're doing is taking down free advertisements all around the world and giving yourself a bad name...
  • Toyota and Sony. (Score:5, Insightful)

    by Sun.Jedi (1280674) on Sunday November 16, 2008 @10:29AM (#25777165) Journal

    Is any more evidence required for average people to avoid these 'too large for their own common sense' companies?

  • by Scutter (18425) on Sunday November 16, 2008 @10:30AM (#25777167) Journal

    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.

  • Pathetic (Score:5, Insightful)

    by GFree678 (1363845) on Sunday November 16, 2008 @10:30AM (#25777171)

    Directly attacking the fans who are providing free advertising of your product is about as stupid as it gets.

  • The path is clear. (Score:5, Insightful)

    by MostAwesomeDude (980382) on Sunday November 16, 2008 @10:33AM (#25777191) Homepage

    Ignore the notice. It's clearly not properly formed, and should provide great evidence, should Toyota decide to start suing this guy.

  • by Teancum (67324) <robert_horning AT netzero DOT net> on Sunday November 16, 2008 @10:48AM (#25777261) Homepage Journal

    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.

  • by denobug (753200) on Sunday November 16, 2008 @10:54AM (#25777305)
    If they cannot point out the specific photos they own copyrights with, Nexus does not have to comply out of obscurity of the notice. Simple as that. Try to bring that to court Toyota!

    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.
  • Re:Pathetic (Score:5, Insightful)

    by DarkOx (621550) on Sunday November 16, 2008 @11:07AM (#25777411) Journal

    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.

  • Re:Pathetic (Score:3, Insightful)

    by deniable (76198) on Sunday November 16, 2008 @11:09AM (#25777423)
    Protect the trademarks against use in trade or against genericisation. Taking your idea to extremes, every Toyota car in a news article, ad, movie or anything else would be a trademark case for Toyota. Another thing, the story is about copyright, not trademark. Toyota would have to do real work for a trademark claim.
  • Re:Pathetic (Score:5, Insightful)

    by Teancum (67324) <robert_horning AT netzero DOT net> on Sunday November 16, 2008 @11:21AM (#25777483) Homepage Journal

    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.

  • Re:its just a car. (Score:5, Insightful)

    by davolfman (1245316) on Sunday November 16, 2008 @11:22AM (#25777491)
    The proper response? Bill Toyota right back for each and every takedown.
  • by berend botje (1401731) on Sunday November 16, 2008 @11:24AM (#25777501)
    Don't tell us, tell the board members of Toyota. Write a polite, well formed letter expressing your above stated concern. Your letter won't make a difference. My letter won't either. But when they get enough of those, the idiots responsible for this fiasco will be found and taken out of the loop.
  • by MobyDisk (75490) on Sunday November 16, 2008 @12:02PM (#25777707) Homepage

    The difficulty here is that some of those wallpapers might have official Toyota photos that have been airbrushed or had something added. That would make them derivative works, and they would be under Toyota's copyright. But there is no way for the site owner to know that. And if Toyota won't tell him which ones, then he is kinda stuck.

    Legal question here: Is the site owner safe under DMCA safe harbor? He hasn't received a DMCA request, and he isn't advertising or selling the images. He is just a content provider. What if the owner puts a check box during the upload process saying "[ ] I certify that this image is copyrighted by USERNAME and is not created from any copyrighted works" and someone lies?

    I know Wikipedia handles this by having a big paragraph about copyright when images are uploaded, and when you click on the image you see that boilerplate.

  • Re:its just a car. (Score:5, Insightful)

    by genner (694963) on Sunday November 16, 2008 @12:06PM (#25777737)

    ... 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.

  • by DRBivens (148931) on Sunday November 16, 2008 @12:09PM (#25777755) Journal

    Yes, and there is something else many people seem to forget: An invoice does not necessarily indicate a debt owed.

    In other words, "Invoice me all you want, you morons. I ain't gonna pay it!"

    Sheesh...

  • 2+2=4 (Score:3, Insightful)

    by sam_handelman (519767) <skh2003&columbia,edu> on Sunday November 16, 2008 @12:29PM (#25777881) Homepage Journal

    Maybe they aren't so stupid after all.

      This entire discussion consists of 2 parallel discussions -
    1) These DMCA notices will draw all kinds of attention to the website in question.

    2) The website in question is completely favorable to Toyota, why would they shut it down?

      Answer is pretty obvious, my friends.

  • by Anonymous Coward on Sunday November 16, 2008 @12:34PM (#25777907)

    However, in lieu of Toyota's errant behavior

    You might want to look that one up.

  • by calidoscope (312571) on Sunday November 16, 2008 @12:41PM (#25777955)
    Wonder if Disney thinks the community of Tarzana infringes on their trademark???

    I really think the penalty for trademark abuse is loss of all IP rights.

  • by xant (99438) on Sunday November 16, 2008 @01:03PM (#25778139) Homepage

    That just doesn't matter. Don't prosecute things that are benefitting you. To make an analogy: Suppose you were standing on your front lawn with your wife when she collapsed, unable to breathe. When you ran inside to call an ambulance, someone off the street ran up and successfully administered the Heimlich, saving her life. Do you prosecute him for trespassing? Do you quibble about whether the law is on your side?

    Think about it. Yeah.

  • Re:Pathetic (Score:3, Insightful)

    by Artifakt (700173) on Sunday November 16, 2008 @01:04PM (#25778153)

    The DCMA has nothing to do with trademarks, AND there is absolutely no requirement to protect copyrights or lose them. None, Nada, Zip, Zero.
            This is why the whole concept of IP law is a fraud. All types of IP have their own rules, and lumping them together is just an attempt to get around the actual law in the court of public opinion. Grouping IP law together lets Toyota sue people without valid grounds, and instead of the public deciding it's not safe not to buy cars from hyper-litigious bozos with deep pockets, they are often fooled into giving the company the benefit of a doubt and thinking the law virtually forces them to file. It doesn't, and do you really want your next car to come from people who, if they sold you a lemon, would probably counter-sue you on some equally ridiculous grounds if you tried to take action?

  • Note that I've no idea if he's actually a Christian or not: it was just an example.

    This is America. You can assume that any given American is a white christian male, because most of us are the first two, and most of the notable ones are the latter.

  • by Anonymous Coward on Sunday November 16, 2008 @01:52PM (#25778531)

    Your situation is not analogous.

    Your content was put up by you or your agents whereas the content put up on the site in question is put up by **users** and is held to a different standard of liability. The website owner is protected by the Safe Harbor provision of the DMCA, which is why this thread is specifically about the DMCA.

  • Re:just wow (Score:3, Insightful)

    by TFGeditor (737839) on Sunday November 16, 2008 @02:35PM (#25778817) Homepage

    I am looking to buy an economical pickup truck. I was going to buy a Toyota, Think I'll get a Nissan instead, send a copy of the invoice and canceled check to Toyota, and tell them why.

  • Re:its just a car. (Score:3, Insightful)

    by Pepebuho (167300) on Sunday November 16, 2008 @02:48PM (#25778913) Homepage

    Please specify what law are you basing your argument on. Nothing in law supports your reasoning. In fact DMCA forbids it. As a copyright owner you have to specify under oath (perjury) exactly the thing that infringes your copyright for the website to take it down. The website owner does not have to go on a hunting spree.
    As it is, Desktop Nexus should simply ignore it because it is not a proper DMCA take down notice, and if the idiot lawyers should prosecute, they should be counter demanded for negligent practice plus damages, plus pain and suffering

  • Re:its just a car. (Score:2, Insightful)

    by Jack Malmostoso (899729) on Sunday November 16, 2008 @02:51PM (#25778939)
    And there goes coffee through my nose.
  • by Skapare (16644) on Sunday November 16, 2008 @04:52PM (#25779685) Homepage

    What you describe is something that existed in copyright law even before the DMCA. If you are the one making the decision about what to put up, then you are responsible for making sure you don't put up anything that infringes on any copyright. While the DMCA can be applied even to such cases, it doesn't even have to. The copyright owner can use the traditional legal methods against you.

    What this part of the DMCA is for is to deal with cases where the web site does NOT make the decisions. When user postings are involved, the DMCA included a provision to protect internet access providers (and this includes web sites hosting user submitted material, not just an ISP running a hosting service for user web sites) ... provided the ISP does certain things spelled out in the law to gain this safe harbor (register their agent, do the takedown, etc). As long as the ISP does these things, the DMCA protects them from liability.

    So if you as a webmaster put up copyrighted content, the ISP hosting your website would be protected if they follow the DMCA, but you would not be protected. The copyright owner could still pursue you for the past damages even if the site stays down. Having it taken down may be enough to make many copyright owners happy enough not to pursue you, but that option is open to them.

  • Re:its just a car. (Score:5, Insightful)

    by Naturalis Philosopho (1160697) on Sunday November 16, 2008 @05:35PM (#25779985)
    You can ignore physics all you want, rest assured that it won't forget you.
  • Re:its just a car. (Score:3, Insightful)

    by cbiltcliffe (186293) on Sunday November 16, 2008 @05:47PM (#25780069) Homepage Journal

    but this is /. and no one is ever wrong here!

    What are you talking about? Anyone who disagrees with me is wrong. ;)

  • Re:its just a car. (Score:4, Insightful)

    by Kamots (321174) on Sunday November 16, 2008 @07:26PM (#25780703)

    It's called impact absorbtion.

    Her car absorbed the impact, yours didn't. If you'd been hit by another SL-1 you'd both have ended up with injuries as neither car would have absorbed the impact. Hint, being in a rigid steel box that doesn't absorb impact is a bad thing. Without the car absorbing anything, you get hit by your car as hard as it was hit... which leads to things like hospital trips.

    As it was, she subsidized you, and you walked away unhurt. Be glad.

    And why in the heck did you pick the Mustang for your example? You do realize that it is, in no way, a cornering machine? It's made to go (kinda) fast in a straight line and that's it. Hell, it has a live rear axel!

    Physics. It's a wonderful thing.

  • Re:its just a car. (Score:5, Insightful)

    by Blkdeath (530393) on Sunday November 16, 2008 @08:38PM (#25781099) Homepage

    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.

  • Re:its just a car. (Score:3, Insightful)

    by Lershac (240419) on Monday November 17, 2008 @01:40AM (#25782661) Homepage

    The consequences of everyone doing what they want would be the country we live in. Improvement is always possible, and I applaud your goals if not your methods. Shout your message from the rooftops, its a fine thing to believe so heartily in improving the world we live in.

    Unfortunately, you choose to see most people as too stupid to comprehend your message, and goals, that is evident in your tone and manner of spreading your ideas.

    You propose to dictate to people how they should go about their lives, telling them how they should do things. This directly contradicts with the Declaration of Independence and several articles of the Bill of Rights.

    DoI:
    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

    Not your happiness, each their own.

  • Re:its just a car. (Score:3, Insightful)

    by fugue (4373) on Monday November 17, 2008 @02:46AM (#25783023) Homepage

    You propose to dictate to people how they should go about their lives, telling them how they should do things.

    Ah yes, well, those are called "laws". I'm for them, in principle. Sorry you're not. To be more precise, I'm rather for telling people what they can't do (basically, behaving unsustainably or abusing commons). As for what they can, I will offer only suggestions there, but I have some good ones :)

    This directly contradicts with the Declaration of Independence and several articles of the Bill of Rights.

    If you interpret "Liberty" (or whatever) as the freedom to do whatever you like, then sure. In which case, I'm sure you can see that the quotation/interpretation you furnished provides perfect justification for me to insert a piece of rutabaga into your left nostril. Or dump carcinogens, toxins, greenhouse gases, etc into air that you were thinking of breathing...

    The people who wrote that were trying to start a war. It was a political document, not a philosophical one. They were influenced by political philosophy, to be sure, but also by rhetoric, and for that matter completely ignorant of what problems the future would bring. Treating it as gospel is almost as bad as, well, treating gospel as, er, gospel.

  • Re:its just a car. (Score:2, Insightful)

    by Anonymous Coward on Monday November 17, 2008 @03:57AM (#25783333)

    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.

    Children, watch carefully now: this is natural selection in action.

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