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Countering a DMCA Takedown In the Magnet Wars 475

Posted by kdawson
from the not-attractive dept.
An anonymous reader writes "Zen Magnets, a maker of neodymium magnet toys, has been under assault by the much larger and better distributed Buckyballs, maker of a nearly identical toy. After Zen Magnets listed a couple of eBay auctions with a set of Buckyballs and a set of their own, asking customers to decide which was of higher quality, Buckyballs replied with a legal threat. Zen Magnets countered with an open video response, in which they presented the voicemail from Buckyballs and demonstrated their claims of quality through repeatable, factual tests, providing quantitative data to back up their assertions. Soon after, Buckyballs CEO Jake Bronstein got the video taken down from YouTube via a DMCA takedown, despite the fact that the only elements not made by Zen Magnets are the voicemail he left and some images of himself, which are low-resolution and publicly available online. Zen Magnets has decided to file a counter-takedown notice — not effective yet apparently, since the video is still marked as taken down." Slashdot's sister company ThinkGeek sells Buckyballs. No, we don't get kickbacks, but we totally should.
Update: 09/23 13:23 GMT by KD : Reader Coopjust (872796) points out one place where the disputed video has been mirrored.
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Countering a DMCA Takedown In the Magnet Wars

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  • Fair Use (Score:5, Informative)

    by Sonny Yatsen (603655) * on Thursday September 23, 2010 @08:51AM (#33674156) Journal

    One of the specifically noted exception to American Trademark Fair Use is that you can use a competitor's name in an advertisement as a way of comparing your product with theirs. Since the whole point of trademarks is to inform customers about the source and quality of a product, the whole trademark infrastructure is geared toward benefiting the customer. So we want want companies to say "My brand X is better than brand Y!". Buckyballs, if Zen Magnets don't back down and this goes to court, have no case.

  • by Anonymous Coward on Thursday September 23, 2010 @08:57AM (#33674218)

    Here's a mirror of the video. [youtube.com]

    Zen's delay is most likely due to the fact that they're consulting a lawyer to make sure things are done by the book and they're legally in the clear (and don't damage any possibility of suing Buckyballs for committing perjury on the DMCA notice).

    This is what they've last said on the matter on reddit:

    Edit: Decision is we're going to do a counter-notification, but we're gonna have a lawyer back us up. (Especially since there have been good points about potential $$$ damages for perjuring a false copyright take-down.)

  • by hedwards (940851) on Thursday September 23, 2010 @09:02AM (#33674268)
    Yeah, there are penalties. Out of 512. Limitations on liability relating to material online [cornell.edu]

    (f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
    (1) that material or activity is infringing, or
    (2) that material or activity was removed or disabled by mistake or misidentification,

    shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

  • by Coopjust (872796) on Thursday September 23, 2010 @09:02AM (#33674276)
    The reddit link seems to indicate that they're in the process of making sure they're completely clear:

    Decision is we're going to do a counter-notification, but we're gonna have a lawyer back us up. (Especially since there have been good points about potential $$$ damages for perjuring a false copyright take-down.)

    The video has been reuploaded to Youtube by a few others though.

  • by irving47 (73147) on Thursday September 23, 2010 @09:09AM (#33674352) Homepage

    All rare earth magnets are that way. They are especially concerned about them being swallowed separately or coming apart.... The problem being if they are in different stages of your intestines, they will attract each other and either stay right where they are, blocking flow of blood or other stuff, or maybe even wear right through the walls and make holes. Pretty nasty situation either way.

  • by tepples (727027) <tepplesNO@SPAMgmail.com> on Thursday September 23, 2010 @09:14AM (#33674398) Homepage Journal

    Does the DMCA offer any immunity to civil lawsuits for damages resulting from a [false/abusive] DMCA takedown notice?

    Per Title 17, United States Code, section 512 [copyright.gov], the service provider (e.g. YouTube) is immune to liability for the required two-week downtime after receipt of the counter-notification (512(g)(1)). But the complaining copyright owner is not immune (Lenz v. Universal).

  • by Coopjust (872796) on Thursday September 23, 2010 @09:18AM (#33674432)
    It's been mirrored by other people on Youtube [youtube.com].
  • by Narcocide (102829) on Thursday September 23, 2010 @09:19AM (#33674454) Homepage

    video == hilarious :)

  • Re:bullcrap (Score:4, Informative)

    by RattFink (93631) on Thursday September 23, 2010 @09:19AM (#33674456) Journal

    The penalty is right in the notice. All proper DCMA take down request require this:

    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.

    A false or abusive notice can land the petitioner on the hook for perjury. The problem is getting it prosecuted and making the charges stick.

  • Re:bullcrap (Score:5, Informative)

    by Jawnn (445279) on Thursday September 23, 2010 @09:27AM (#33674518)
    "The Wal-Mart Effect" is the name for what you describe. See here [slashdot.org] and here [fastcompany.com] for a wonderfully informative story on how it works.
  • Re:bullcrap (Score:4, Informative)

    by Thansal (999464) on Thursday September 23, 2010 @09:42AM (#33674700)

    It isn't youtube people are calling abuse on, it's the company issuing the DMCA take down...

  • by Teancum (67324) <(robert_horning) (at) (netzero.net)> on Thursday September 23, 2010 @09:44AM (#33674750) Homepage Journal

    The problem here is that while this may seem like abuse, I think the law is on the side of Buckyballs here in terms of a potential copyright violation. Fair use is a defense against copyright infringement and while you and I may think that the content is clearly used properly under fair use provisions, that is not a proven legal fact until it has been tested in court. The counter take-down notice (demanding that the content be restored) is indeed the proper legal remedy that should have been followed here, not suing Buckyballs into the ground on this issue.

    The voicemail and the images clearly are copyrighted by Buckyballs, and the DMCA notice was to take the content down. If you post something that contains copyrighted content belonging to somebody else, even if it being used under clear fair-use provisions, it can be subject to a DMCA take-down notice. If that happens to you, live with it and file the counter notice if you want it put back up... or simply live with it being gone.

    Where the penalties come in is if you start to file take down notices for things you don't even own or if you keep filing a take down notice for the same content (or similar content) even after it has gone to court where it has been proven as legitimate fair use. The above post by hedwards goes into the formal legal citation for this.

  • Re:ThinkGeek (Score:4, Informative)

    by martas (1439879) on Thursday September 23, 2010 @09:52AM (#33674824)
    again, thinkgeek's general email address is webmonster@thinkgeek.com . make your opinion heard.
  • Re:bullcrap (Score:5, Informative)

    by value_added (719364) on Thursday September 23, 2010 @09:53AM (#33674836)

    Please feel free to post if you've found a source for reliable (as in 20 year life span) major appliances.

    How's "Miele" for a start?

    Most anything they sell will give you a good 20 years of service, and if not, the construction and quality of materials is such that a rebuild (motor, etc.) is worth the money and trouble. I've heard Steve Jobs opted for Miele washing machines and dryers. Could have been an aesthetic choice, but folks buying a BMW or a Porsche may be doing the same.

    If a stove is what you want, then try something from a manufacturer like Wolf. There's no reason a good quality stove shouldn't last you 50 years or more.

    All in all, it depends on how much money you want to spend. And how willing you are to shop somewhere other than the local mall. We live in a Walmart world where convenience and price reign supreme for most people, so any meaningful discussion of quality is typically among the "select few". Put another way, I have to make a special trip to buy my vacuum cleaner bags. ;-)

  • Re:bullcrap (Score:2, Informative)

    by commodore64_love (1445365) on Thursday September 23, 2010 @09:56AM (#33674868) Journal

    I know it's fun to make fun of Walmart but I admire their philosophy.

    "The vice president's office was furnished with a folding lawn chair and a chaise lounge." i.e. Cutting costs. Saving money. Perhaps if US citizens and more importantly the US Congress adopted the same "live within your means" philosophy, we would not have a national debt equal to $140,000 per household (plus another $90,000 of personal mortgage/credit card debt on top of that). Having ~230,000 average debt per home is not sustainable.

    Also I'm not sure why the Snapper CEO felt intimidated (saying he literally started sweating). I certainly would not. The Walmart VP is a man and nothing more.
    .

    >>>"(Wal-Mart won't help you out with repairing broken mowers)"

    Flat wrong. When my car broke down, Walmart towed me into their garage and found the problem (dead battery). While there I mentioned I had a broken weed eater and the mechanic said they repair lawn appliances too. If this Snapper story couldn't get that bit of the story correct, I suspect the rest is wrong (or embellished) as well.

  • Streisand effect (Score:5, Informative)

    by LordKronos (470910) on Thursday September 23, 2010 @10:00AM (#33674936) Homepage

    Hey Buckyballs...ever hear about the Streisand effect? Someone here in the office has a set of buckyballs and I thought they were pretty cool. I was thinking about picking up a set sometime. I've never heard of Zen Magnets before today. Now that I watched the video you had taken down, I'm thinking maybe Zen Magnets would be the better purchase. Thanks for helping me open my eyes to your competition.

    Definitely a bad PR move.

  • Re:ThinkGeek (Score:3, Informative)

    by Jaysyn (203771) <jaysyn+slashdot@gmai[ ]om ['l.c' in gap]> on Thursday September 23, 2010 @10:02AM (#33674956) Homepage Journal

    I used the webform, but way ahead of you.

  • Re:bullcrap (Score:3, Informative)

    by PseudonymousBraveguy (1857734) on Thursday September 23, 2010 @10:11AM (#33675060)

    How's "Miele" for a start?

    Second that. Miele is one of the last german appliances manufacturer who are still producing in Germany and were not bought out by some cheap Whirl***-alike company. Prepare to pay a little more than usual, though.

  • Re:thinkgeek (Score:3, Informative)

    by commodore64_love (1445365) on Thursday September 23, 2010 @10:19AM (#33675198) Journal

    >>>DROP BuckyBalls as product.

    Doubtful. Thinkgeek just filled their warehouse with millions of Buckyball products, in preparation for the Christmas season. They can't just drop Buckyball in an instant.

  • by swb (14022) on Thursday September 23, 2010 @11:17AM (#33675932)

    I'm pretty sure I've read that buying a new refrigerator every N years pays for itself in energy efficiency, which leads me to question whether it's even a good idea to keep an appliance for 20+ years. Advances in materials, components and engineering can make appliances that use less power, water, refrigerant, etc.

    We replaced a 10 year old dishwasher a few years ago and I was pretty amazed at how well it works. It has a water cleanliness sensor that monitors wash water for particulates and it has a noticably shorter wash cycle when the dishes aren't very dirty, thus saving water, electricity and natural gas (hot water input).

  • by Coopjust (872796) on Thursday September 23, 2010 @11:23AM (#33675994)
    The voicemail was left on the mailbox of a recipient. A voicemail is a knowingly made recording, and one that has no reasonable expectation of privacy.

    I'm no lawyer, but if a voicemail sender retains copyright on their message, I have no idea how a site like Audioo [audioo.com] (which shares embarrassing voicemails with the world) hasn't been sued into oblivion yet.

    As far as the images of Jake (Buckyballs CEO) used in the presentation go (which are images from Google Images, all freely available, used as a representation of a subject matter at a low resolution), I am extremely doubtful. I'm not a lawyer, and it's why Zen is consulting one.

    There was no other property belonging to Buckyballs. The trademark was identified as that of a competitor, so there's no basis for a trademark infringement claim. The rest of the video was recorded entirely by Zen Magnets.
  • Re:ThinkGeek (Score:2, Informative)

    by RealGrouchy (943109) on Thursday September 23, 2010 @01:06PM (#33677324)

    Plus, I heard of this other company that makes a product that's not only very similar, but also better!

    - RG>

  • by pwnies (1034518) <j@jjcm.org> on Thursday September 23, 2010 @09:37PM (#33682976) Homepage Journal
    Playing the devil's advocate here, the flaking that you're experiencing will happen with all Neodymium Iron Boron magnets with nickel platting. The underlying metals are highly brittle, which means that continuous clacking together will eventually break off small pieces of the NdFeB under the nickel coating. This metal sand will no longer support the shape of the original coating, leading to warping, weakening, and eventually flaking of the nickel coating. The only thing that really determines the endurance is the depth of the coating, and Zen makes no claims that the depth of their coating is better (only that it's more shiny and possibly more uniform).
    As a disclaimer, I have not owned either zen or buckyball's magnets (although it's very possible that I've gotten magnets from the same supplier). I'm just a fan of the NdFeB magnets and have a moderate-large amount of experience with them.

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