Anti-Piracy Firm Sends Out Wave of Takedown Notices For Using the Word 'Pixels' 224
An anonymous reader writes: Columbia Pictures recently released a movie called Pixels to widespread ambivalence. As part of the movie industry's standard intellectual property defense strategy, it hired anti-piracy firm Entura International to try to police infringing downloads. The firm went at the task with vigor, hitting Vimeo with DMCA takedown notices for anything with the word "Pixels" in it. As you might expect, this disrupted a number of independent filmmakers and organizations who did nothing wrong, and in most cases picked a name for their video long before the new movie came out. Even worse, it's incumbent upon the owners of the targeted videos to prove that their content does not infringe upon Columbia's. Even if they get it restored, simply being targeted counts against them in Vimeo's eyes. And of course, Entura is unwilling to help.
Seems simple enough to reverse this strategy (Score:4, Insightful)
I suggest a DMCA takedown notice against Columbia pictures filed by anyone using the name previously. Or must one be rich to use government enforcement agencies as one's lapdog?
Re:Seems simple enough to reverse this strategy (Score:5, Interesting)
You have to be a corporation or at least something else that we may reasonably expect a campaign contribution from. Where have you been that you don't know that?
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DMCA takedown won't cut it. Instead, go on the offensive and accuse Columbia Pictures for standard copyright violation.
https://www.law.cornell.edu/us... [cornell.edu]
While these aren't necessarily exclusive rights, I'm pretty sure it's meant to prevent plagiarism by someone putting their name on someone else's work. I'd lov
Re:Seems simple enough to reverse this strategy (Score:5, Insightful)
Columbia claim that the works for which they send takedown notices violate the copyright in their new movie. As the works concerned were created and put online before the movie was created, then one of two things can be true. 1) The works do not violate the claimed copyright, or 2) If copyright has been violated, then it is the Columbia movie which violates the copyrights in the earlier work(s). In either case the takedown notices are invalid and abuse of process.
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Not saying this is the case but, there's a third option: leak. Used to be, publication was a requisite for copyright. Now if you're being kind, you can even DMCA whistleblowers instead of jailing or killing them.
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In either case the takedown notices are invalid and abuse of process.
in either case columbia will get away with it and anyone affected will have to struggle to get their content back online. the price of being (irrelevant) part of the media crap fest, i guess.
Re:Seems simple enough to reverse this strategy (Score:4, Informative)
Sorry, but that won't work.
You're citing 17 USC 106A. That only applies to the author of "a work of visual art." That term is specially defined in the Copyright Act, in the definitions section at 17 USC 101. The relevant parts of the definition are:
It really isn't possible for anything online to qualify, due to the requirement of there being only a single copy (a copy is defined in the Copyright Act as being a tangible object containing the work; a computer file isn't a copy, but a hard drive can be, which means that if other people can download it, they're necessarily making a new copy), or no more than 200 copies if each copy is signed and numbered and which are a limited edition.
What this is actually meant for is fine art, like a painting, art prints, etc. Not art posted online. It was a nice try, but you've got to check the statute more thoroughly if you want to cite it correctly.
Re:Seems simple enough to reverse this strategy (Score:5, Funny)
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sign only that you represent author, not infringem (Score:3)
> You must sign under penalty of perjury that you know the infringement to be true.
The statement under penalty of perjury is that the person filing the complaint represents the author or their assigns.
Whether or not a work is infringing, vs whether it's fair use, coincidentally similar, etc is a judgement call. It isn't a knowable fact anyone could witness to anyway. You could find a song that sounds just like an Emininem song and reasonably believe that they copied from Emininem, then later find out
Re:sign only that you represent author, not infrin (Score:5, Insightful)
IANAL but, it seems reasonable that the courts could impose some penalty for robo-signing the DMCA take-down notices as they are legal documents. Even the big banks had to pay huge penalties and redo mountains of legal paperwork for doing the same thing (robo-signing legal documents).
Counter sue for negligence, lack of "good faith" (Score:2)
Yes, you can counter sue for damages if they act negligently, like these people apparently did. Another relevant term is "good faith". Those apply. Perjury doesn't, by statute.
Re:Seems simple enough to reverse this strategy (Score:5, Funny)
We would like to make clear on behalf of our client, Anonymous Coward, that the mistranscription of "Colombia" as "Columbia" was purely an inadvertent administrative error, which was subsequently acted upon by computer without further human interaction. Therefore as Anonymous Coward is in fact the copyright holder of the work "first ten word draft of script for documentary 'Colombia'", the perjury penalties under the DMCA do not apply. Have a nice day.
With best regards,
The Lawyers
Let's hope (Score:2, Funny)
The The don't hire the same outfit...
Standard shite (Score:5, Insightful)
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In some cases that may be true, but in most cases even modern stories are heavily derivative, invoking cultural motifs that go back millennia. That's not to say the works aren't creative, perhaps artistic, and that some level of protection is merited. But when you have commercial interests just making blanket legal demands to remove any video or film with the word "pixel" in the title, you very much have large corporate interests attempting to co-opt, or to put it more bluntly, steal surrounding cultural cr
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Yeah, and Walt Disney studios wrote Cinderella or Beauty and the Beast.
They did an excellent derivative work, but that shouldn't give them any rights over the original, its name, its storyline, or anything else that they didn't explicitly create. Even then 20 years is excessive...and it's been a long time since it was 20 years.
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The safe harbor provisions specifically prohibit the hoster from evaluating DMCA claims. They must take the claim at face value and the counterclaim at face value.
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What really needs to happen is for the "under penalty of perjury" part of the DMCA to be re-written to have some teeth in the case of false claims.
If a good-sized assortment of executives, lawyers, and clerks at Columbia and Entura were to find themselves locked away for a year at San Quentin, Folsom State, or Pelican Bay over this; I bet they'd not pull the stunt again.
DMCA reform (Score:4, Insightful)
I don't like most of the DMCA in principle, but I expect I wouldn't even care about it, if it just had some clear built-in penalty for making a false claim (eg: 200% of the maximum damages were the claim valid)
Re:DMCA reform (Score:4, Informative)
It does, but it only applies if the false claim is false in the sense that it wasn't filed by the copyright holder or someone they appointed to represent them. There is no penalty for a claim made in error, so long as it was authorized by the copyright holder of the allegedly infringed work.
Re:DMCA reform (Score:5, Interesting)
"It does, but it only applies if the false claim is false in the sense that it wasn't filed by the copyright holder or someone they appointed to represent them."
Incorrect. You must sign under penalty of perjury that ALL CLAIMS MADE are accurate and made in good faith.
I file DMCAs quite often, so I know the whole rote already.
The claim made by the corporate representative is neither made in good faith (likely done automated) nor accurate.
Re:DMCA reform (Score:4, Informative)
From section three:
---
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
'(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
---
The perjury part applies only to (vi) - that the complaining party is authorized to act on behalf of the copyright holder and that the contents of the claim are accurate. The actual infringement needs only a good faith belief. It's arguable if an automated enforcement system can really be called that, as the use of fully automated takedown bots was not envisioned when the legislation was created, but I have never heard of any prosecution for that, and I can't find any with a bit of googling
The DMCA makes it clearly illegal to knowingly submit a false DMCA claim, but there is no offense committed for submitting false complaints due to incompetence, haste or cost-cutting. This is not just my own uneducated reading: It's the defense used by some major copyright holders who have committed exactly the same overzealous errors in the past: https://torrentfreak.com/warne... [torrentfreak.com]
The judge in that case never decided if that defense was valid, as the parties reached a settlement.
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The actual infringement needs only a good faith belief.
Or it doesn't, if there is no actionable penalty for issuing a takedown notice without such belief.
That seems to be the fundamental problem here. Legislating that no-one can make an honest mistake in this kind of field seems unconstructive, given the inherent uncertainty of fair use and the like. However, legislating that someone can maliciously or negligently make a claim that they should reasonably have known to be false is a different thing entirely, and that seems closer to what actually happened.
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I am personally just waiting for the day someone releases a movie consisting of just a single letter; perhaps a movie about drugs and night clubs named E.
Then a takedown request on EVERYTHING that has an E in it.
The internet will get really, really empty when all orphaned works of any kind vanish without a trace.
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While it's not E, O seems close enough...
https://www.cirquedusoleil.com... [cirquedusoleil.com]
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IANAL, but it would seem that if the paperwork is submitted falsely or without some standard of due diligence, the submitter (and it requires a legal entity to submit such a claim) would potentially perjuring themselves (claiming copyright on another's work). However perjury is a criminal act and would require a state appointed prosecutor to pursue.
While I suspect that they could be sued in civil court for damages arising from the false accusation, nobody so accused has the money to fight such a battle, esp
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According to the US code, perjury is a felony, isn't it? Would the person who committed perjury on a DMCA form be able to be placed under citizen's arrest?
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That seems to be the fundamental problem here. Legislating that no-one can make an honest mistake in this kind of field seems unconstructive, given the inherent uncertainty of fair use and the like. However, legislating that someone can maliciously or negligently make a claim that they should reasonably have known to be false is a different thing entirely, and that seems closer to what actually happened.
Correcting this deficiency seems pretty easy -- at least with respect to the text of the law. All we need is another part that specifies that the issuer of the notice makes a statement under penalty of perjury that they have performed due diligence in ascertaining the correctness of their good faith belief. The courts would have to work out what "due diligence" means in this case, but it's obvious that it would have to mean at least verifying that the allegedly infringing work at least references the allege
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All we need is another part that specifies that the issuer of the notice makes a statement under penalty of perjury that they have performed due diligence in ascertaining the correctness of their good faith belief.
Yes, something along those lines seems quite reasonable to me, though in this context I'm not sure the perjury aspect adds anything other than complexity to simply requiring a claimant to perform due diligence or face a proportionate penalty. Something to compensate both the hosting service and the original provider of the hosted material that was taken down seems in order. Depending on the circumstances, that might reasonably vary from a modest fee to cover their time and trouble (negligent takedown but no
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"The perjury part applies only to (vi) - that the complaining party is authorized to act on behalf of the copyright holder and that the contents of the claim are accurate."
Incorrect. Perjury is perjury, stated or not. I know of two former landlords of mine with perjury charges.
Perjury is lying to the officiating authorities (police are not an officiating authority, they have no legal right to judgement) under oath or sworn testimony.
https://www.law.cornell.edu/us... [cornell.edu]
Writing "Under Penalty of Perjury" is done
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Class action lawsuit for defamation? Claiming someone who holds copyright in their own work actually infringed another's copyright may taint their reputation as a content creator?
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How about suing for time wasted? Lawyers and responding to bogus DMCA takedowns costs time and money.
Re: DMCA reform (Score:2)
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There are penalties, but only for things that aren't usually in dispute. When you send a DMCA takedown notice to YouTube or Vimeo or wherever, you're essentially saying, "I own the copyright in work X (or am the authorised representative of the owner of X). You are hosting work Y, which infringes the copyright of work X, and I demand that you remove Y." If you're not the owner of X or his authorised representative, that's perjury. But if Y doesn't actually infringe the copyright of X, that's just, "Oh well,
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filing millions of bogus notices
I wonder if there is some way that this runs afoul of the CAN SPAM [wikipedia.org] law.
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I'd be surprised if it was against anti-spam laws. CAN-SPAM applies specifically to messages advertising a commercial service or product, though I suppose this tactic could fall foul of other countries' laws. I'm curious as to how you'd get around them if it did. Claim you have an existing business relationship with Vimeo because you watched a video that someone posted there?
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We should be able to get a ruling that the claim was frivolous and get awarded damages due to it.
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That would probably require a lawsuit, or at least the threat of one, which would probably involve spending more on lawyers than you're ever likely to see in damages...
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I haven't looked into the counter-notice procedure much, but it's apparently not as effective as it might be. See https://en.wikipedia.org/wiki/... [wikipedia.org]
Re:DMCA reform (Score:5, Informative)
Apparently, part of the problem is that Vimeo has a DMCA copyright 'strikes' system where a certain number of 'strikes' gets your account deleted and you're banned from the site. It seems that the main issue here, other than the hassle of filing a DMCA counter-claim, is that when you get the DMCA claim pulled, Vimeo will put your video back on their site but, they do not remove the 'strike' from your record. The short version is that if you get enough bogus DMCA claims against your account they will delete your account and ban you from their service even though you did nothing wrong beyond happening to name something you created too close to a name a major studio chooses to use in the future.
Re:DMCA reform (Score:4, Insightful)
Re: (Score:3, Interesting)
One of the videos taken down was their own trailer for the film, so the process has already started.
Another example (Score:4, Insightful)
Solution (Score:5, Insightful)
Have a significant penalty for an invalid complaint.
Re:Solution (Score:4, Insightful)
Better solution: hunt down the employees of Entura and torture them to death. Paying out money is a cost of doing business. Risking one's life is a whole 'nother game.
Re:Solution (Score:5, Funny)
No, the sociopath would hunt down and torture the family members of the employees. What we found was the vigilante.
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Sorry but expecting lawyers to implant a loser pays system goes against their ethics.
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Loser pays is a typical court strategy in other places to convince losing plaintiffs to not waste the judge's time. It's common elsewhere, and occasionally happens here.
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*in the United States.
Plenty of other jurisdictions have some variation of loser-pays-by-default system. Would you like to guess how many of those jurisdictions have the same problems with dubious threats and offers to settle as the US?
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Yep... it's called "punitive damages" in law. Use a movie title to take down something you can't and you should forfeit the movie's copyright to the people you sued.
Re:Solution (Score:5, Interesting)
I prefer corporate death penalty. The company is instantly dissolved Loses it's corporation status and opens up all Board and executive members to be 100% liable and suable.
Government agents then dismantle the company and sell it off for it's assets within 30 days of the ruling.
That right there will overnight make all corporations stop acting like assholes.
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I've been a big supporter of the corporate death penalty for a long time. It would only be used against the worst offenders, either in severity or repetitiveness, but, it would quickly convince the other companies to shape up or be destroyed themselves.
Re:Solution (Score:4, Insightful)
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And Carly Fiorina is busy running for president.
What was the penalty for a false DMCA notice? (Score:3)
Probably not enough to actually matter to such a massive corporation...
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There isn't any. That's the problem.
At least they didn't hire these guys for "It" (Score:2)
Can we get rid of this nonsense intellectual monopoly concept already?
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Obviously (Score:2)
And of course, Entura is unwilling to help
Why would they? 1. It annoys Download sites 2. Creates a stir, everyone remembers 'pixels' now
This is, sadly, nothing new. (Score:2, Interesting)
In a past life, I ran some Forums on CompuServe. Paramount once sent us similar broad, misinformed takedown demands, pre-DMCA, seemingly regarding anything with TREK in it. This included photos of Trek brand bicycles, and news photos from 1976 of the Shuttle debut which happened to include Star Trek actors.
This garbage won't go away until there's a reasonable barrier to filing these, and an actual penalty for false claims. Perhaps an escrow of sweet delicious cash upon submission, released to the victim.
5-year old video (Score:5, Interesting)
I recall seeing a Youtube video where someone did the exact same pixel-invasion scenario. It starts with someone dumping an old TV, which then releases it's angry pixel payload, followed by space invaders who hit various cars, pac man who eats the subway stations (converting the staircases into just a few pixels), tertis blocks that remove floors of buildings, arkanoid paddles that remove bricks from a bridge, and finally ends with a bomb that turns the planet into one black pixel.
Here it is: https://www.youtube.com/watch?... [youtube.com]
I'm sure Columbia has their claim, but some indie beat them by five years As usual, it's a big publisher doing a keyword search without thinking about the consequences.
Re:5-year old video (Score:5, Informative)
The Columbia picture is acknowledge as being based on that film (and based on French director Patrick Jean's 2010 short film of the same name [wikipedia.org])
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That's the ultimate irony: That short film was licensed by Columbia, and was the original inspiration for the Columbia Pixels film. So not only is it not infringing on their movie, it is their movie's goddamn genesis.
Then again, the studio took down their own trailer. I suppose getting the short film they originally licensed is just part of being thorough.
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Or you could go back another 8 years to a Futurama episode titled Anthology of Interest II and specifically the segment titled Raiders of the Lost Arcade
https://en.wikipedia.org/wiki/... [wikipedia.org]
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And Futurama did it in "Tales of Interest", 1 or 2.
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I hope the creator is able to successfully sue Columbia.
Probably not. He literally sold them the rights to remake that short as a feature film.
In other news (Score:2)
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The country is called "Colombia", not "Columbia".
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The country is called "Colombia", not "Columbia".
Looks like the Asperger's crowd i chiing in.
That makes it even worse - Columbia not only infringes upon the name of a sovereign nation, but spells it wrong to boot!
Is a false DMCA claim an act of Perjury? (Score:5, Interesting)
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In a DMCA claim, the only part that is possibly under perjury is the part where you claim you are acting on behalf of the copyright holder. It doesn't matter what you make your claim against.
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No, wrong.
https://www.law.cornell.edu/us... [cornell.edu]
Learn what perjury means.
Is a false DMCA claim an act of LIBEL? (Score:2)
On the other hand, in submitting a false DMCA notice against your videos the studio (or someone acting on its behalf) has claimed in writing that you have effectively stolen something of worth from them, and in so claiming they have cause you harm - your time in dealing with the false claim, possibly financial losses due to video removal, loss of reputation due to the claim, a
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"I'm not sure it counts as perjury under the DMCA as you'd have to prove they were intentionally lying and not just making mistakes through carelessness."
Incorrect. You have to claim that all statements made are accurate and made in good faith.
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"A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf."
Good faith shouldn't be had to disprove in this instance: as a company who specialises in anti-piracy they should know the law and should be held to a higher standard than a member of the general public. An automated search for anything containing the word 'Pi
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Wrong.
https://www.law.cornell.edu/us... [cornell.edu]
Perjury applies to ANY FALSE STATEMENT MADE UNDER OATH.
If any statement made in a DMCA is false, you are guilty of perjury.
You cannot make a good faith statement KNOWING you or your client don't have rights to that property you claim is infringing. That is perjury as well.
Pixel Perfect? (Score:2)
Does this movie happen to be based on the made-for TV movie Pixel Perfect from 1999?... it was about a guy who created a computer character girlfriend and then had to write the program that kept himself in love as real women rejected him.
Some people thought I was in that situation... see AIM was huge as we were mostly using modems to communicate, and it turns out a real ex-girlfriend of mine was posing for videos to become a dynamic script-able virtual character. That hasn't been released yet... and scares
This Really Needs to Stop (Score:3)
Can't copyright titles (Score:5, Insightful)
Can't copyright titles and 'pixel' as a word is too generic to trademark. Ignore the take down.
http://www.writersdigest.com/e... [writersdigest.com]
Q: Iâ(TM)ve been working on a book and the title is very importantâ"I use it as the URL for my blog, for a weekly column I write, etc., and I want people to identify it with me. Can I copyright a title so others canâ(TM)t use it? â"Anonymous
A: Copyrights cover works fixed in a tangible format, but because titles are typically short, they donâ(TM)t fall under copyright protection. So no, you canâ(TM)t copyright a title to a book, song or movie. But you can trademark a title, which may give you the protection you seek.
The U.S. Patent and Trademark Office states that a trademark protects words, phrases, symbols or designs identifying the source of the goods or services of one party and distinguishing them from those of others. Brand names like Pepsi, Xerox and Band-Aid are all protected. So is the Nike âoeswoosh.â But more relevant to us, book titles such as The Da Vinci Code and Harry Potter and the Sorcererâ(TM)s Stone are trademarked.
Unlike copyright protection, which is granted the minute your work is written down, trademarks arenâ(TM)t handed out so freely. In fact, if the U.S. Patent and Trademark Office doesnâ(TM)t consider your title (or brand) a distinctive mark that is indisputably distinguishable from others, you will not be granted trademark protection. This is why you see so many books with the sameâ"or very similarâ"titles. Many of the terms are considered too generic or arbitrary to warrant protection.
Trademarks are not only intended to protect the creator, but also the consumer. Trademarks keep others from confusing a well-known work on the bookstore shelves with others. For example, Harry Potter is such a popular, distinguishable character by J.K. Rowling that youâ(TM)d expect any title with his name in it to be written by her (or, at least, a book approved by her). Itâ(TM)s not only her work, but itâ(TM)s become her brand.
So if you use the title of your book as the title of your blog, column, etc., it could be considered your brand identifier. And if you find success, you could qualify for trademark protection.
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Actually, you cannot trademark the mere title to a work.
In order to just function as a trademark, a mark must indicate that all goods bearing a particular mark originate from the same source; merely identifying the good is insufficient.
The title to a work merely identifies the work. That's not enough to be a trademark. Only if there are multiple works, forming a series, and the mark is a shared part of the title indicating that all the works are part of that series, and that anything in that series shares a
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Laziness or malice? (Score:2)
Sue them for Libel (Score:5, Interesting)
Hasn't Entura committed libel, and can't they be held accountable for that?
Right or wrong vimeo.com took them down (Score:2)
DMCA take down notice https://www.chillingeffects.or... [chillingeffects.org]
Link I tried https://vimeo.com/135046490 [vimeo.com]
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Checking (an ah damn moment) I do have them blocked twice t.vimeo.com and utmtrk.vimeo.com
Yet show ocsp.digicert.com (Gateway) to b.global-ssl.fastly.net that sends me to safebrowsing.cache.l.google.com
Using the DMCA for good... (Score:2)
1) Make a series of movies titled "PowerPoint", "Flash", "SilverLight"
2) file DMCA take down notices.
3) all the crappy presentations and horrendous web sites disappear.
I could also do evil ( or more good depending on your point of view). My final movie will be called Stallman....
Pixels (Score:2)
Now sue me. I'll wait.
Tell them what you think (Score:4, Insightful)
Here's their website, with a contact email address posted conveniently on the front page:
http://entura.co.uk/ [entura.co.uk]
Prior-Use (Score:2)
Columbia Pictures' claim of some form of intellectual property rights to the term "Pixels" must be invalid on the basis of prior use. Over 10 years ago, one of my copyrighted Web pages used the term "pixels". The Internet Archive contains a copy of that page dated 10 February 2005; that copy contains the notice "Copyright © 2003-2004 by David E. Ross".
The current page is http://www.rossde.com/internet... [rossde.com].
Addressable Pixel LED strings (Score:2)
This may be a problem when the people posting videos of their animated Christmas light shows with addressable pixels get taken down. The would be akin to Microsoft taking down cleaning services because they advertise washing windows and glass shops for selling Windows. This could backfire. Even flatscreen manufactures could get hit by advertising the warranty based on the number of dead Pixels. The term Pixel is not copyrightable by itself no more than Windows is and for the same reason.
Re: Sue them (Score:2)
Except step 2 would be "get tied up in court for years while Columbia's lawyers bleed you dry." And step 3 would be bankruptcy, not profit.
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It's not like you have to hire a team of lawyers to prove libel, and the lawyer's costs would be recoverable if you won the suit.
Plus if they've sent out hundreds of these take down notices, that would be a pretty big class - I bet you could find a lawyer who would work on that kind of class action suit on a contingency basis.
They might try and drag the suit out for years, but they have to pay their lawyers too, it's going to cost them a lot more than it would cost you.
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I'm pretty sure the DMCA has a provision that you can't sue someone for wrongfully accusing you of infringing their copyright. At least if I bought myself a law I'd make sure as fuck that it can't be used against me.
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Would it really surprise you?
But what actually transpires is pretty much the course of a interim injunction. What the DMCA pretty much requires anyone involved is to treat a takedown notice as if it was an i.i. Should you stand up against it, they'll just go "whoopsie, my bad" and that's it.
No, you don't have any recourse against it. The idea is that the immediate takedown protects the potential rights owner from having his rights infringed. Funny enough, that's neither slander, nor libel, no defamation. Be