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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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  • The Question (Score:5, Interesting)

    by Ltap (1572175) on Thursday September 23, 2010 @08:50AM (#33674150) Homepage
    News about an unfair DMCA takedown (don't worry, there are thousands of those) or free advertising for Zen Magnets? You decide.
  • Re:Fucking Magnets, (Score:3, Interesting)

    by chichilalescu (1647065) on Thursday September 23, 2010 @08:58AM (#33674232) Homepage Journal

    the most interesting thing is that they don't actually work, because the force they exert on something is always perpendicular to the direction of motion of that something.

  • thinkgeek (Score:5, Interesting)

    by MickyTheIdiot (1032226) on Thursday September 23, 2010 @08:59AM (#33674240) Homepage Journal

    I have been a customer of ThinkGeek for a long while... and I hope that they really show where their values are and DROP BuckyBalls as product. I've always believed that they took more notice of this type of stuff and tried to stock items that didn't participate in this type of corporate asshattery. I hope I don't get proved wrong...

  • Re:bullcrap (Score:4, Interesting)

    by erroneus (253617) on Thursday September 23, 2010 @08:59AM (#33674242) Homepage

    Does the DMCA offer any immunity to civil lawsuits for damages resulting from a [false/abusive] DMCA takedown notice? If not, then the answer here would seem to be simple. I think the plaintiff can prove through a preponderance of evidence that the issuer of the notice knew it had no claim of copyright over any of the material in the video. This would prove the DMCA takedown notice was wilfully abused for the purpose of censorship damaging the plaintiff's business.

    They should definitely sue.

  • Re:bullcrap (Score:5, Interesting)

    by Maxo-Texas (864189) on Thursday September 23, 2010 @09:12AM (#33674384)

    The worst problem is in areas like Appliances where the company making cheap crap ("Whirlxxxx") buys out their higher quality competition ("Mayxxx"), and then starts producing cheap crap under the "Mayxxx" name.

    It has reached a point where it is impossible (as far as I can tell) to buy
    a dishwasher
    a hot water heater
    a washing machine

    That will last 20 years like they used to. The current dishwashers have electronics that are damaged by storms every 2-3 years. Some of the "money" parts are hard plastic so they wear out well before 10 years.

    It's better in some cases to buy used and spend big bucks getting the item repaired. Then at least you have a solid appliance.

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

  • Re:bullcrap (Score:3, Interesting)

    by NJRoadfan (1254248) on Thursday September 23, 2010 @09:17AM (#33674430)
    Mayxxx was making crap well before Whirlxxxx bought them out. This is based on first hand experience. People want cheap cheap cheap, so the design choices you mentioned were made to reach a price point.
  • Re:bullcrap (Score:5, Interesting)

    by Teancum (67324) <(robert_horning) (at) (netzero.net)> on Thursday September 23, 2010 @09:21AM (#33674470) Homepage Journal

    It is an interesting concept. The trick here would be to prove damages, although it is possible to file a libel tort if the assertion of copyright infringement was knowingly false. Because there was technically copyrighted material involved that was owned by Buckyballs, I don't think this assertion would work in court. Yes, the content is being reproduced under clear fair-use standards, which is precisely why the counter notice was issued. That process is spelled out very clearly in the DMCA and to me is one of the few good things in that legislation (surrounded by a whole bunch of evil text).

    Basically an ISP must respond to a take-down notice, but if a protest if filed then the content must be restored and the matter goes to a court for resolution. Of course companies like YouTube may not be entirely friendly about the process and may lean a little more toward taking stuff down rather than restoring it. It may even take a lawsuit against the ISP to "educate" them about what the DMCA actually says. This can get tricky though, as restoring the content which is later proven to be infringing in court can bring penalties that may be increased due to the content being restored. It definitely is time to hire an attorney if this kind of chest thumping starts to happen and you care about whatever it is that is getting yanked around on the net.

  • by Anonymous Coward on Thursday September 23, 2010 @09:26AM (#33674512)

    does Zen or Bucky have their _own_ smelting and chrome plating facilities ? just for magnets ? are they mining the ore ?
    lol a pair of middlemen resellers squabbling about who has the best dealer

  • Toys (Score:2, Interesting)

    by Anonymous Coward on Thursday September 23, 2010 @09:29AM (#33674550)

    While some people argue over toys, there is a real life macro economic crisis brewing over some of the metals used in these toys..and in advanced tech useful products, the important stuff we all use. China is blocking the transfer of rare earth metals to Japan in a dispute over ocean territory and fishing rights, etc. More of a big dick contest with japan, and therefore the rest of the world, and I tell you, China will win that contest. At this minute, they are denying it is happening, but that seems to be spin. They made their point that even the threat of blocking these materials would cause severe economic harm to their competitors.

  • Knowingly? (Score:4, Interesting)

    by JSBiff (87824) on Thursday September 23, 2010 @09:31AM (#33674566) Journal

    I always love when they through in language like "knowingly", because, I'm no lawyer, but isn't it pretty hard to prove that someone 'knowingly' misrepresented. If they just say, "We didn't know", how do you counter that? The only way I can think of is if you happen to get lucky and find an email or other record of a private conversation between company employees where they essentially admit it.

    Also, to what extent can lawyers "shield" their clients? I.e. if a Client goes to their lawyer, and the lawyer tells them "yeah, that's infringing", even though it isn't, does the law hold the lawyer liable? I mean, if you acted on advice of your attorney, can you claim you didn't know you were making a misrepresentation (after all, your lawyer told you so, it's just your lawyer was wrong)? Is there anything to stop corrupt little deals where lawyers tell their clients what they want to hear, so that the client can act on advice of their attorney, and because the attorney doesn't face any penalties, it's all sort of 'legal'?

  • by kipin (981566) on Thursday September 23, 2010 @09:33AM (#33674592) Homepage
    I recently purchased 4 sets of BuckyBalls when they were recently on woot. I'm pretty pissed that I did now and want to show my support to Zen Magnets and buy a set of theirs. They seem to have much better quality from everything I have read and seen, and can attest to BuckyBalls "flakes" now coming off in my hand after using the magnets for about 2 weeks.

    From what I have heard, this company BuckyBalls made about $500,000 in sales from the woot sale (woot actually bought more from BuckyBalls on the day of the sale because demand was so strong), and $250,000 in sales on the day Google changed its logo to honor the Buckyball. Seems they may have grown too big for their britches and feel a sense of entitlement now.
  • Re:bullcrap (Score:3, Interesting)

    by Pojut (1027544) on Thursday September 23, 2010 @09:49AM (#33674798) Homepage

    This is the approach we took when buying a new printer. We looked into getting invitations for our wedding done professionally, and after seeing how much it cost, we just picked up some decent looking invitations from Michael's and went out to buy a new printer (it ended up costing about 1/4th what it would have cost to get them done professionally...and we got a printer out of it!)

    We went with a Brother HL-2170W. [newegg.com] $90 for a wireless laser printer, and it works AMAZINGLY well. Toner is super cheap (the extended carts can be found for $40, and last for ~2,200 pages under real world applications), the wireless was super simple to set up, it's quiet and fast...a great investment.

    We didn't care about bells and whistles, we didn't care about color, or a copier, or "PC-free printing"...we just wanted a wireless laser printer that did nothing but print. This thing is easily the best printer I've ever owned.

  • by Myopic (18616) on Thursday September 23, 2010 @10:06AM (#33674992)

    In the interest of peer-reviewed science, I was inspired to test my coworker's Bucky Balls using the Rigid Stick Test. When we made the rigid stick, it was much straighter than the one shown in the video. Then, when we pushed it over a ledge, it stood up to 27 balls. The video showed 24 for Bucky Balls and 25 for Zen Magnets, so I would say that the test would need repetition and graphing, like they did for the ball diameters.

    Still, I loved the video and I thought it was wonderful tongue-in-cheek advertising. It makes me want some Zen Magnets.

  • Re:bullcrap (Score:3, Interesting)

    by lowrydr310 (830514) on Thursday September 23, 2010 @10:12AM (#33675076)
    Let me tell you the story of my famous drill. When I was a teenager, my father and I were hiking in the woods and came across an old pile of garbage that someone had dumped. It looked like it had been sitting there for at least five years, and had obviously been through many seasons with plenty of rain and snow. We took it home with us and decided to clean it up. We disassembled it, gave it a brief cleaning, lubed it, and replaced the power cord because the existing cord was frayed and the insulation was dryrotted. We plugged it in and to our surprise it worked! It's from the early 50s, and is a perfect example of quality craftsmanship, when things were designed to last decades.
  • Re:bullcrap (Score:5, Interesting)

    by bluefoxlucid (723572) on Thursday September 23, 2010 @10:41AM (#33675480) Journal

    I buy Land's End Business Outfitters clothing. After 2 years i lost some socks to laundry room theft, so bought some new ones. The new socks are ... a shade whiter than the old ones. The 2 year old ones that I do still have are otherwise indistinguishable. They also cost $20 for 3 pair ($6.66/pair)

    I used to buy Wal-Mart clothing. Socks come $8 for 8 pair I think ($1/pair). The socks are not as nice to begin with. After about a month (maybe 4 washes), they have little lint balls hanging off and are flattened out like paper, and fraying. In less than a year they have holes. Realistically I could justify replacing them each month or at most 2 months, so maybe $8 x 6 = $48/year versus $40 for 6 pair that last me ... probably 3, 4 years? I haven't actually found out yet. And those expensive socks are a hell of a lot nicer. We're talking nicer things for $10-$15/year.

    It's the same with the shirts. I bought undershirts that are nice and fluffy... over two years ago, $20 for a 3 pack. They're good as new, but a little yellowed due to my horrible water (they're UNDER my shirt and feel nice), no fraying at all. I have shirts I bought 2 years ago from Land's End; one frayed around the edges, the other 5 are almost brand new. The pants... one has frayed because I kick my shoes off and catch the cuff under my sole; the others I haven't damaged and they need to be ironed. The shirts cost me $25 (wal-mart shirts are $15-$18) and pants cost me $30 (Wal-Mart pants cost me $18-$25, list price on Land's End pants is $40 but Sears has sales).

    The stuff I get from Wal-Mart lasts me about 2-3 months before showing holes, frayed/lost threads (bands around pants legs where thread has unraveled!), or complete loss of volume (socks, undershirts become paper-like). I pay 1.5 times as much and get something that lasts 2-3 years at least without fading or fraying, and it looks and feels better because it's dyed with better dyes and woven better (some of my cotton shirts have a smooth sheen and feel like silk!) and made of brushed Peruvian cotton. I'm sorry but yes, more expensive stuff just costs less; these people are indeed short-sighted morons.

  • Re:bullcrap (Score:4, Interesting)

    by HungryHobo (1314109) on Thursday September 23, 2010 @10:44AM (#33675520)

    That will last 20 years like they used to

    There's a selection bias here.
    There is cheap crap now which breaks right away.
    There has always been cheap crap that breaks right away.

    But you remember the lightbulb which lasted 10 years, not the other 20 that came with it and all burned out in the first few years.
    You remember the phone which lasted 10 years, not the one which you had to take back after a week with a flaky screen.

    People assume that they built things better in the old days because the items from that era have lasted so well.
    Ignoring that the items that didn't last aren't here to be evaluated.

    In 20 years there will still be people talking about the washing machine they bought back in 2010 which lasted 20 years and why can't they build like that nowdays.

    though I'll agree with you that whirlpool as a brand is terrible.

  • Re:Fair Use (Score:2, Interesting)

    by Beorytis (1014777) on Thursday September 23, 2010 @11:01AM (#33675738)
    Another important class of fair uses is parody, and there's no way the photos of Jake Brownstein in the video were not intended as parody.
  • Re:news. (Score:2, Interesting)

    by magus_melchior (262681) on Thursday September 23, 2010 @11:14AM (#33675906) Journal

    Uh, no. Buckyballs' "inventor", Jake Bronstein, is a fool with a thin skin. Otherwise, he wouldn't call up his competitor with threatening language, nor would he file a frivolous and false DMCA takedown.

    Zen should keep their cool and stick to the facts, and Bronstein will exhaust himself in anger and lawyers.

  • Re:bullcrap (Score:3, Interesting)

    by ultranova (717540) on Thursday September 23, 2010 @12:43PM (#33677016)

    Yet the owners with the highest number of shares, the Waltons (all 4 of them), each walk away with billions per year, while the people working there live just below the poverty line.

    Well, that is the whole point of Capitalism: it's Feudalism 2.0, with some of the dogma changed to a new wording - for example, rather than talking about the Divine Right of Kings, they talk about Property Rights, and rather than talking about God, they talk about the Invisible Hand of the Market. But it all works out to the same: the nobility benefits at the expense of everyone else.

  • Re:bullcrap (Score:3, Interesting)

    by DinDaddy (1168147) on Thursday September 23, 2010 @12:53PM (#33677140)

    Sears' appliances have always been rebranded units from the major mfrs, i.e. whirlpool, GE, etc., so their quality decline is due to the other brands.

    Their customer service went into a severe nosedive about 2-3 years ago. We had bought ~$10K in appliances from them during 1995-2005, and they always bent over backwards to give us good servic up until then.

    Then one day, after the third repeat of an issue with a Kenmore rebranded whirlpool high end washer, they stopped being helpful and actually became obstructive to getting it serviced. My wife pressed the agent on the phone, who finally admitted the company had reprioritized their whole service department to reduce costs and they were instructed to literally make it as diificult as possible to get warranty service. My wife asked if it mattered that we would now take our obviously lucrative (to them) appliance business somewhere else, and was told yes, it was short sighted, but couldn't be helped.

    Gotta please the shareholders.

  • by Teancum (67324) <(robert_horning) (at) (netzero.net)> on Thursday September 23, 2010 @01:14PM (#33677412) Homepage Journal

    It makes you wonder a bit about a cow magnet [wikipedia.org] where you deliberately feed a magnet to livestock.

    This is used because many cows are so stupid that they will eat part of a barbed wire fence and other junk while grazing. Generally you don't feed the cows multiple magnets, and they stay in the rumen of the cow... a rather strange organ that is unique to cattle and other ruminants. Still, it is interesting that sometimes feeding magnets to creatures can be beneficial as well.

  • by Cow Jones (615566) on Thursday September 23, 2010 @02:13PM (#33678242)

    I bought a magnet set from zenmagnets.com in April, and I love them. They're every bit as advertised, and delivery to Europe was only a little over a week. I can't attest to the quality of the BuckyBalls product, but what I can do is compare the companies' attitudes. We've just read what the BuckyBalls execs are like. As a contrast, here's the confirmation email I got from Zen Magnets after my purchase.

    HOORAY! I'm pleased to announce that your order ( #xxx ) has been processed and is now complete.

    Please rest assured that we hold great urgency to each and every shipment. We promise your order will be out of our door within 24 hours of receiving this email. Unless you selected a shipping service with tracking, there will not be an additional email.

    After a rigorous 4 step process of verifying the quality and consistency of each and every magnet, we donned silk gloves and placed it into a sacred padded envelope made of magic and lined with Unicorn fur, sealed the envelope with an adhesive made from strands of Gypsy hair, and wrapped the whole thing in a snazzy looking faux gold leaf paper, with elm leaf inlay from Costco. Unfortunately, by the time it gets to you, all of that fancy stuff will likely have been picked clean by the greedy postal service employees. Please don't be surprised to see just a plain padded envelope.

    Now which company would you rather do business with?

    CJ

  • Re:bullcrap (Score:1, Interesting)

    by Anonymous Coward on Thursday September 23, 2010 @02:37PM (#33678468)

    Well, the question becomes "how much is that quality or feature worth to you".

    Here's an example. I recently bought a pair of wireless headphones w/ mic for $60. They have universally poor reviews with every reviewer pointing out that the left side speaker tends to go out within about half a year. I knew this when I bought them, but I got them anyway. Why? 2 reasons.
    1. I got these headphones because the way my apartment is set up, I have my tv connected to my computer and I wanted to be able to watch tv (over the internet) without being tethered to the computer. Once I move out in about a year, I have no idea what the landscape of my next apartment will look like, and I highly doubt my tv will be in the bedroom or connected to the PC.
    2. I had a very tight budget and going too far over would have meant not eating for a couple of weeks. When the choice is between "substandard product now" or "no product at all" i'd rather get substandard and deal with the issues that come up. All other alternatives either had the same problems or cost twice as much.
    3. I tend to be hard on my headphones. I've broken great pairs of $40 wired headphones by tripping on them or sitting on them. I'd rather throw out a cheap pair of $10 headphones after a year than throw out a great but broken pair of $40 headphones.

    So yeah, in half a year I'll probably chuck the cheap crap away. That's better not having them at all or chucking out a set of $200 ones.

We warn the reader in advance that the proof presented here depends on a clever but highly unmotivated trick. -- Howard Anton, "Elementary Linear Algebra"

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