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DMCA Question


Deja Letov
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Hey guys...have a question. I received an email that something I made had a DMCA filed against it. If the item in question is made with sculpts purchased on the Marketplace and animations bought through a merchant that I have to be invited to the group to purchase and the textures were made myself...and all creators involved say didn't file it against me...how is that possible? I've never been contacted by anyone and I am always on the up and up on my TOS, I never violate them. And if the creators all say it wasn't them...how do you handle it other than just submitting the counter letter? And will my customers who bought this item also lose it from their inventory? How is this even possible? Don't you have to be the creator to file a DMCA or can say competition for example, seriously just go through your marketplace listing and start filing DMCA's claiming they own them simply to jack with you?

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Well, Im doing some digging because I just received more. And all of the emails I got ALL revolve around one particular sculpts. I keep ALL Of my transaction history, expenses and sales, and I found the receipt for the item and can see the creator, the object name and the price I paid...and sure enough it was full perm bought by me in Feb 2011. So I I click on the link to see the product on the Marketplace and it takes me back to the MP home page. SO ok the item has been removed. Well I've bought several items from this person in the past so I go look and his marketplace listings aside from a couple of crappy ones are ALL GONE. Every sculpt, every texture,everything.

What can we even do about this? I'm assuming the person filing the DMCA against me isn't even this person I bought it from. I'm guessing it is from someone else who maybe sued him and is now going after everyone who bought from him? I'm seriously stressing out because I"ve bought several things. And now I'm wondering how many of my creations are gonna be yanked due to one grass sculpt or whatever else I've bought.

Are my customers who've purchased this item going to lose their items as well? Can I attempt to go and buy another full perm grass piece and take out the one in question and replace it and still keep my item as long as that sculpt is removed? I'm fine with replacing it for my customers if they will lose theirs I just have never had to deal with this before and not sure exactly how it works.

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LL are legally obliged to act on a DMCA claim so YES, they will remove all instances of the challenged objects UNLESS you file a counter-claim.  At that point LL are legally obliged to reinstate everything and it's up to the claimant to prove their case in court.  If you believe there are other people affected by the same DMCA filings you can form a collective defence.  More, should you believe these are malicious filings with no serious grounds then you can counter-sue for damages.

The question is, of course, is whoever filed the claim want to test it in court and are you willing to defend it?

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Well I did already fax my letter in. I put all the details in it including my transaction history of the purchase. Thank God I am so crazy organized with my stuff or I might not have had it. I also plan on sending a notecard to this person and seeing if he will contact me, but I'm almost convinced it's not him I think he was the one doing something wrong. My plan is to take this sculpt item out  and just go buy another grass sculpt, they are a dime a dozen, but it still irks me that I even have to do this. It's crazy and I dont even know how to protect myself in future instances of this when you have someone selling you something that isn't even theirs to sell!

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Just an update...the maker of the sculpt in question finally got back to me and said he didn't file it either. One of the items sent to me from LL is specifically a one single prim item that he made, a patch of grass I had laying around on my sim that wasn't even for sale. He says he's never filed a complaint against anyone nor has one been put against him. Is it possible that this is a fake complaint from someone? Everything has been accounted for, permissions on everything down to animations, sculpts and textures.

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Very mysterious! :matte-motes-frown:

I suppose LL won't tell you who filed DMCA...maybe your best bet is to counter file, that way you get the details of the culprit and their reasoning.

At first i thought the merchant you bought the sculpts from....probably copybotted or something and then sold them on Marketplace. That Merchant said he did not issue the complaint.....then why are his products no longer listed on MP?

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It's not all that mysterious to me.  Someone filed a DMCA take down notice for this sculpty or the scuplt map.  The orginal seller of the item could have recieved the same email and had the items removed or maybe not.  The assumption that it's a particular sculpty may be inaccurate and could be something else entirely.  The ultimate answer is to file an appeal to the take down.......LL has to reinstate the item according to the law (just as they had to take the item down when the DMCA was filed).  In effect, LL washes their hands of the mess and passes it on to people involved........you'll get who filed the take down and any contact information so that you can take it a step further (a real life court of law).  Then you'll see whether or not this is a false claim.....call the filer's bluff. so to speak.  But be prepared for some real life court action.  It is a crime to file a false report and a DMCA take down filed erroneously (or out of spite or for competitive reasons).......your accusor will be forced to put up or shut up.  Meanwhile your content is reinstated to the grid.

 

It appears that you are a victum of "collatoral damage" or someone who just thinks they can gain some advantage over you in sales for a similar (or even copied) item.  It's a chance you have to take when you don't actually create all the content it might take to create your item for sale in SL.  Purchasing "full perm" sculpties or maps for things you make for sale is risky.  You don't know who really made the map or scuplty.  You are trusting someone who you have absolutely no way to ever know..........the ability to remaining completely anonymous in SL is one of the biggest draws for many people and that presents a great big problem for people like you.  You just don't know and you can't ever know until something ugly happens.  Creating everything you make in SL will lessen that risky.  Learn to make your own sculpties or meshes or textures..........otherwise accept the risk and do the best you can.

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PeterCanessa Oh wrote:

LL are legally obliged to act on a DMCA claim...

People keep saying this.  If they take down the allegedly infringing content, they have a safe harbor, meaning that they are absolved of liability for whatever infringement occurred.  They are perfectly free to refuse to remove it, in which case they can be sued.  I know of a case in which LL took down content in response to a DMCA notice that was obviously invalid because the allegation was that a trademark was being infringed, and the DMCA does not cover trademark infringement.  IMHO, they should excercise just a little judgment and display a little backbone by refusing to act on DMCA notices when the allegations contained in them, if completely true, would not constitute copyright infringement.  If the  filer in such a case chooses to sue, it will lose and LL can recover damages from them.

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Deja Letov wrote:

... Don't you have to be the creator to file a DMCA ...?

No, but you have to be (to legitimately file) someone whose copyright is being infringed.  You could be someone who bought, or was given, limited or full rights.  You could have bought all rights from the creator.  You could have bought an exclusive license to use something in SL, while the creator retained rights to use it everywhere else, etc.

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Yeah, you're probably correct.......but it is a matter of interpetation of the law.  And we all know how legal language can be ambiguous, vague, and just plain non-sense.  Think if you owned a multi-million dollar business (or even a 1,000 dollar business run from your spare room in the back of your home).  Would you take a chance with language like this?

------------------------------------------------

The Digital Millennium Copyright Act of 1998

Copyright Office Summary December 1998 Page 12

Under the knowledge standard, a service provider is eligible for the limitation

on liability only if it does not have actual knowledge of the infringement, is not aware

of facts or circumstances from which infringing activity is apparent, or upon gaining

such knowledge or awareness, responds expeditiously to take the material down or

block access to it.

The statute also establishes procedures for proper notification, and rules as to

its effect. (Section 512©(3)). Under the notice and takedown procedure, a copyright

owner submits a notification under penalty of perjury, including a list of specified

elements, to the service provider’s designated agent. Failure to comply substantially

with the statutory requirements means that the notification will not be considered in

determining the requisite level of knowledge by the service provider. If, upon receiving

a proper notification, the service provider promptly removes or blocks access to the

material identified in the notification, the provider is exempt from monetary liability.

In addition, the provider is protected from any liability to any person for claims based

on its having taken down the material. (Section 512(g)(1)).

-----------------------------------------------------------------

http://www.copyright.gov/legislation/dmca.pdf

 

By any standard of sensibility, the provider (LL in this case) is required by law to take down the property in question.  To do anything else is not only foolish, it's stupid.

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"...

This notice, which must be filed by the copyright holder or an agent working for them, is sent to the service provider's DMCA agent, which all service providers must appoint and register with the U.S. Copyright Office. Most DMCA filers, use some form of stock letter to help speed the process along.

..."

----------------------------------

 

The 8th paragraph under the "Take Down Notice" section.

http://brainz.org/dmca-takedown-101/

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Well I did file the counter. I talked extensively with the creator who I was fairly certain this resolved around since one of the items in question is a single prim item. He assured me he was the creator of the sculpt and the texture on it and said he has never had anything filed againt him so he doesn't understand how it would be filed against me but not him...since his name is listed as the creator. Either way...I've remade the items and got a different grass sculpt so at this point I don't really care, I just need to figure out what to do in future cases, because most of the time I buy many sculpts from the same creators, I've got a set of favorites. And yes, I know, i really should learn to make my own sculpts but then that can also be said with the animations, textures, scripts, etc. If this was an actual full time income for me, I probably would but this is "supposed" to just be fun for me, so I guess that's my excuse for now. But I think I agree with you and look into at least starting with sculpts.

Thanks for the feedback everyone. This was a first time thing for me and I was very stressed out about it (freaking out imaginging myself in jail and being some girls biotch). :)

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Hello. I not agree at all about all the people encouraging Deja to send a counter-notification. First of all you should be absolutely sure that there has not been a copyright infringment, and sorry but that's not possible when you are not the creator and you bought the sculpts full permission from someone else.You do not own the copyright. Why the seller of the sculpts full perms have removed the products on the marketplace? That's suspicious. He explained the reason? To me looks like if the sculpts were stolen and removed after a previous DMCA, and now the original copyright owner found your product.

But again, the point is that you cannot send a DMCA or counter-notification if you do not own the copyright. Just imagine that you bought  stolen sculpts and now after filed the counter notification you get a citation to the court (yes, we know it is very difficult to happen) but, are you sure that you could prove that there has not been a copyright infringment, not being the creator either the copyright owner?

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yes you're right I suppose but does that mean anyone should be able to bully others around simply because they can anonymously...assuming they are not the actual copyright owner. There is no way to know for sure. I do have one question though...it says they send my information to the person accusing me? Do I also get theirs as well?

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Just FYI however...I've already removed the items just to be on the safe side and recreated them with another grass sculpt so the objects are gone and recreated. And...I'm on a new mission to learn to create my own sculpts. I don't think I;ll ever go so far as to do animations but this sculpting side seems to be alright so far.  :)

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I'm actually talking to a few people in game right now who saw this forum (thank you by the way for letting me know) and so I am officially freaked out now because apparently this is a tactic used by stalkers to find out your personal information. My only hope is that my secretary sat on her butt yesterday and never faxed it over for me. I'm checking first thing in the morning. But assuming it did get faxed, and most likely it did, is there a way to cancel it? I;m hearing some crazy stories from people who have had this happen, one person has had it filed 3 times against her by some nut job and I don't want any part of that. I've already emailed back LL at the original email inquiring in case it did go in but ya...I'm officially worried I've got some crazy nut job stalker after me now. How in the world is this a good policy to just give out personal information to anyone who "claims" they own the copyright? I don't understand why someone doesn't have to prove they ownt he copyright first and then get a court order for the information of the person behind a character. That to me makes much more sense since it would take actually going to court and ensuring the real person is the one doing the filing and not some nut job.

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Peggy Paperdoll wrote:

...
a service provider is eligible for the limitation
on liability
only
if it does not have actual knowledge of the infringement, is not aware 
of facts or circumstances from which infringing activity is apparent, or upon gaining
such knowledge or awareness ...

Failure to comply substantially 
with the statutory requirements means that the notification will not be considered in
determining the requisite level of knowledge by the service provider.
If, upon receiving 
a proper notification,... 

 

In the case I mentioned, the complaint in the DMCA notice was that a resident was using a single word in the name of her SL business that the filer had registered as a trademark.  Single words are not subject to copyright; therefore, on its face, the notice was not a proper notice of copyright infringement because it was not possible for the alleged conduct to be copyright infringement.  The DMCA does not apply to trademark infringement, so, again, it was not a proper notice.  I didn't see the notice, so I don't know, but I'll bet it was carefully worded so as to say nothing that was literally untrue, e.g., claiming to hold exclusive rights to the use of the word in question without saying that that was because it was a registered trademark, not because they held copyright.  Or maybe they actually complained of trademark infringement, and LL, for whatever reason (ignorance?  laziness?  fear?) let them get away with misusing DMCA to abuse its customer.

It seems to me that LL should recognize a fiduciary duty to its customers not to act on obviously invalid DMCA notifications.  If they are obviously invalid, as in the case I cited, I don't think they are taking much of a chance.  

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Deja Letov wrote:

I don't understand why someone doesn't have to prove they ownt he copyright first and then get a court order for the information of the person behind a character. That to me makes much more sense since it would take actually going to court and ensuring the real person is the one doing the filing and not some nut job.

Because we have the best Congress money can buy, and that's not what the media industry wanted.

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Well I officially freaked the heck out  LOL  I called my office assistant and finally got hold of her and it did get faxed in today but she said it did give her a weird tone so we're hoping maybe it didn't go through possibly. However, I've already responded back to LL in the email and voiced my complaints with this and asked them to cancel my counter if they received the fax. I also told them how stupid it was to just give out personal information with no proof that any crime had been commited and that any nut job could get their hands on my information. I kinda feel like I'm being bullied here and taking it up the whazoo for not doing anything about this but my hubby has been reading some of this, and we have kids and he's really concerned IF in fact this is just some nut job trying to get my personal information. So ya...I guess I am in process to just let someone boss me around on this one. I can't even tell you how livid I am about this and just sick it makes me that someone would do this over a video game.

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Deja Letov wrote:

... However, I've already responded back to LL in the email and voiced my complaints with this and asked them to cancel my counter if they received the fax. I also told them how stupid it was to just give out personal information with no proof that any crime had been commited and that any nut job could get their hands on my information....

It's not LL's fault.  They are just doing what the ill-conceived DMCA prescribes.  

I do have a practical suggestion for you.  I don't know, but I think it may be possible to meet the requirements for information in a counter-notification by using the name of a business and a post officer box address, which would be a lot better than using your name  and residential or business physical address.  I think it would be worth investigating.

I could not, in a brief search, find an explicit statement saying that the target of a DMCA notification has a right to receive information about the identity of the filer.  However, the target does have an explicit right to sue the filer of a false notification for damages, and it would be impossible to serve someone without identity and contact information.

 

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Now I'm curious, at what moment does LL reveal your private information?

I know when LL gets a counter DMCA they must inform the sender of the first DMCA. Then they have to wait for 10 days, and when the first DMCA sender did not respond to tell he is seeking court, LL restores the content.

Now at what moment does LL hand out your adres to the first DMCA sender? At the moment they tell them they received a counter DMCA? Do they for example send the copy that contains your adress?

Or do they hand over your private information at the moment the first DMCA sender let's them know they want to solve the issue in court?

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