Halp: Intellectual Property Issues-Random Plaza

For Intellectual Property Issues

Note: None of this is legal advice and it is possible the text contains a mistake.

Contents ♦ Service Provider's role
♦ Trademark issues
→ Objective
→ Some information
→ The Plan
♦ Privacy violations and impersonation
♦ Copyright violations
→ How we will do the DMCA notices at Random Plaza
→ Miscellenous DMCA information
♦ What about patents?
♦ Some links

Service Provider's role
The Communications Decency Act was a bill with a loaded name designed to make the USA's Internet more censored than China's. President Bill Clinton all too happily signed the bill into law in 1996.

(If you're surprised Bill Clinton would do this: Area 51 is well known as where the United States government designs new aircraft and supposedly works with extraterrestrials in secret. In 1994, five unnamed civilian contractors and the widows of contractors Walter Kasza and Robert Frost sued the United States Air Force and the United States Environmental Protection Agency over bad goings on at Area 51. The United States government tried to block the court case, however Judge Philip Pro of the United States District Court for the District of Nevada in Las Vegas rejected the government's argument. So Bill Clinton then issued a Presidential Determination to keep silent all the secret things going on at Area 51 such as pacts with aliens like well, who knows.)

Section 230 of the Communications Decency Act was not part of the original Communications Decency Act that was mostly ruled unconstitutional. Rather, Section 230 was an amendment designed to promote freedom. Section 230 (full text) said things such as, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

For instance, there is the court case of Tiffany & Co. vs. eBay Inc. Back in 2002, eBay won the case of Gentry v. eBay, Inc., 99 Cal.App.4th 816, 830 saying Section 230 gave them immunity when someone sold forged autograph sports items. But eBay screens items a lot more now than in 2002. eBay has stated that going on for years now it has kept listings from showing up in the search for numerous hours while its "fraud detection algorithms and investigators" prescreen the listings ( http://www2.ebay.com/aw/core/200807281134472.html ). And even though heavy prescreening could reduce a service's provider's liability protection to that of a newspaper's, eBay still came out victorious in the Tiffany vs. eBay case where in July 2008, a United States court ruled that eBay was a distributor and not a publisher of its content.

To abide by Section 230 protection, we do not review content prior to it appearing on our site, but instead we rely on others to report violations to us.

Trademark issues

Objective

Random Plaza is very concerned about stopping illegal activity related to trademarks/brand names on its website.

Common illegal activity on the internet related to trademarks/brand names is:
1) Someone sells brand name knockoffs.
2) A small company sells their own products that they manufacture under their own brand name that they own all the rights to and are *not* knockoffs in any way. And then someone else comes and makes false trademark violations against the small company to get their products removed from a website that the small company lists on.
3) A seller is legally listing someone else's brand name item. The item is not a knockoff and the listing complies with First Sale Doctrine. And then either a trademark holder or competitor does illegal price fixing by making false and illegal claims of trademark infringement to get the seller's items removed from a website.

Case #1 happens a lot on the internet, but case #2 and #3 happen far more often than case #1. Random Plaza does not want to allow any illegal activity related to trademarks/brand names to happen on its website.

Some information

Fair use also allows one to use a copyrighted/trademarked name if one is selling the related product.

First sale doctrine says that once a copyright/trademark holder places the item in the stream of commerce by selling it, the holder loses their exclusive statutory right to control its distribution. This is different if someone is selling an item that had never been previously released for commercial sale. It's like if you buy a painting from the painter and later you sell it, the painter can't stop you from selling it. First sale doctrine applies to both copyright and trademark law in the USA. Without this law, places like second hand goods stores, video rentals, libraries, automobile rentals, and other equipment rentals would not even exist as trademark owners could shut them down easily.

Random Plaza wants to keep knockoff goods off its website. However, it is impossible to tell on the Internet if someone is selling a counterfeit unless they give it away by displaying evidence of a counterfeit (explained later). Low prices do not mean counterfeit--low prices could mean they are getting rid of products that are not selling in stores by selling them at a loss. Low prices could even mean legitimate items that are stolen and while Random Plaza does not allow stolen goods to be sold here, it still means it is not counterfeit. An imported product from a continent different than where the trademark holder's company is does not necessarily mean a counterfeit because many products are manufactured in whatever country that labor is cheapest.

If someone does not give evidence of a counterfeit in their listing, it is also impossible to prove someone is not selling counterfeits without seeing the item in person. Even if the seller has lots of pictures of legitimate items, video proof, and contact numbers proving they are an authorized distributor, then they could still mix their legitimate items with counterfeits.

The only way to know if a person is selling counterfeits is to go in person and test not only a single item they are selling, but every single item they ever sell.

Of course there are people from large companies that will buy items from online sellers and then sue them if they discover the items are knockoffs. However, unless the trademark holder video taped the package from the time the mailman delivered it, had a lot of video evidence on the packing label, tracking, and then videotaped opening the box and had full video evidence of inspecting the item, and all from a single video camera (not multiple where things can be edited), then there's no way to determine if the trademark holder didn't just switch the seller's item with a knockoff and is doing a fraudulent lawsuit. Of course the way courts in the United States work, the winner is always the person with the best lawyers, not the one who is actually in the right. And if someone is just reselling a used pair of jeans they got as a gift, they probably can't even afford any lawyer in the first place. So this method is nothing more than bullying, unless of course the trademark holder really goes crazy with a video camera as described earlier.

Random Plaza requires of listings in its rules: "If you are listing any trademark items or things like copyrighted software, you must explain visibly either near the top or near the bottom of your listing why the item is legitimate and not counterfeit. Items that do not have this will be taken down." So if you see someone without this, you can report them.

If someone makes it obvious in their listing that it is a counterfeit, then we can take it down. We are not experts every single item in the world and so we would need explanations and proof and it needs to be able to be understood and verified.

The Plan

There are certain ways that someone who is an expert on a counterfeit item can tell if something is counterfeit such as iPhones don't have removable batteries, Prada brand makes a unique sort of box, and so forth. We are not experts in every single product that ever existed so we do not know what is what. If there is evidence on the trademark holder's website, we can use that. However, a counterfeiter can also just for instance use pictures of a legitimate item as their sample and then ship a counterfeit.

The DMCA 512 system is for copyrights, is not legally required, doesn't protect service providers from trademark infringement issues, and the DMCA system is garbage so Random Plaza won't be using that for trademarks. A better alternative is as the trademark holder, you can publically put on your website traits of real items and/or counterfeit items on your website so it's an official statement from the trademark holder. So if the item is clearly not fitting how the trademark holder publically states a genuine item is supposed to be or is fitting what the trademark holder publically says is a counterfeit item, we can remove it. We just need the statement public and somehow that we can also find proof that it is actually coming from the actual trademark holder and the trademark holder exists--this is easy when the trademark holder is a large company and a real pain when the company is some small, unknown organization. (Obviously if a company says "all of items of our company's brand sold on the internet are knockoffs" when anyone can go and buy that company's items in a physical store and by the law of First Sale Doctrine can resell it online legally, then Random Plaza is unable to deal with a company that lies this blatantly.)

Then, we can just remove listings reported that fit those criteria for anyone who reports them and if a trademark owner makes a false claim, then it is their responsibility. You do not have to be the trademark holder to make such a report if an easily verifiable trademark owner is posting the evidence publically for us to see. When reporting, please make it easy for us so we don't have to spend a long time reading through pages of text or spend a long time downloading a large file.

We are also interested in making a searchable directory of intellectual property holder's guides on what is counterfeit and what is not. Buyers can enter in the brand name and it will search and then come up with a link to the guide on your website for telling real vs. counterfeit. This will start out as a single page with sections, keywords of all your companies brands, and links that people will use their browser's text search to find until it becomes large, then it will be a more automated. So please contact us and we can start making it. Hopefully with this system, buyers will be able to check this each time they make a purchase instead of trademark holders having to deal with the laborious task of looking through listings. The page for this is here. This searchable page is intended to be able to work as a resource for buyers to discover if an item is a knockoff or not regardless of whether the buyer purchases the product on this website or not.

This is a much better system than others because normally for dealing with people selling knockoffs of brand names, the trademark holders have to go through and inspect all the listings themselves, which is a huge burden and so they usually just send takedown accusations to anyone who isn't selling the brand name items at above ten times the suggested retail price.

Privacy violations and impersonation
For privacy violations, we have a rule against giving out personal information listings.

If there is an obvious privacy violation or impersonation then we can simply remove it and all you have to do will be to notify us. If things are unclear, then we will need some proof of identity (like if you are Microsoft and we can verify you are emailing us from @microsoft.com).

Copyright violations
So somebody stole your text, pictures, or other media and put it in your listing. If you have some concrete proof that you are the copyright holder we can remove it on that proof, but usually when people make works, they do not do the expensive, time-consuming task of registering their copyright and so without some third party proof, we cannot verify who is the real owner. It is best if you can get some proof because without we do not know what is what. If someone stole one of your images, we also would need more proof than some old record of you uploading it to an image hosting website since we cannot verify if you originally made the image.

If you have a complaint regarding a listing with the caption "Picture Unrelated", it has some free license information in very small print, and it is one of the ones here then you'll need to also deal with that the images have been given out somewhere as free license images and have a lot of people believing them to be free license around the internet, which would be a pain.

If someone is pirating your software or other media, there should be some obvious evidence in the listing like they call it a "backup CD". However, someone selling software as used that they have uninstalled from their computer when the software agreement says they can't resell it as used after uninstalling it from their computer is not the same making illegal copies of the media. Some software have consumer-unfriendly activation systems where if someone buys a product, their computer hardware breaks, and the same buyer gets a new computer, tries to install the software on it and the software won't activate on the second computer -- if someone tries to sell that type of software used, then they might be guilty of selling non-working software, but not piracy. It's like if you buy a painting from the painter and later you sell it, the painter can't stop you from selling it. First sale doctrine says that once a copyright/trademark holder places the item in the stream of commerce by selling it, the holder loses their exclusive statutory right to control its distribution. This is different if someone is selling an item that had never been previously released for commercial sale. If someone is selling software before it is officially released, then it gets iffy on whether it is bootleg, some problems with suppliers delivering legitimate copies earlier than the official release date, and if the seller is doing presales where they do not ship until it is officially released.

In the case of stealing text and images for listings, the problem here is that it is time consuming to officially register everything as copyright and people can steal the content very fast. This content isn't registered somehow where it can be proven who made it first. If you have some proof, it would be better if you try sending it to us first to see if it is good. If you are a seller on this website and another seller copied your listings, then try to spot them quickly because if they go on copying you for several months, it can be hard to tell who copied who first. Even more difficult is that sellers may use stock photos or manufacturer's descriptions so if you sell here and use either of these or something similar, please state in your listing that it is such somewhere that we can find it.

There is one popular system that is part of the Digital Millennium Copyright Act (DMCA), where someone sends a fancy version of a legal threat over copyright infringement and then the service provider takes it down. This is United States law of course, although service providers in the USA and beyond treat DMCA notices like they're court orders out of ignorance of things such as:
♦ The contents of the Online Copyright Infringement Liability Limitation Act (OCILLA), also known as: DMCA 512, DMCA Safe Harbor, DMCA takedown notice procedure, section 512 of the IS Copyright law in Title 17 of the United States Code (Public Law No. 105-304, 112 Stat. 2860, 2877) actually say.
♦ Section 230 of the Communications Decency Act already gives them better protection.
♦ The DMCA takedown procedure is just an optional way for service providers to cover their ass, however according to the actual legal text, to actually qualify: a service provider has to actually spend money to register a DMCA agent with the US Copyright Office including the agent's physical mailing address, real name, phone number, and more to qualify for safe harbor, which rarely anyone does.
♦ DMCAs are unproven legal threats and not findings or the court nor court orders. DMCAs are basically just legal threats and people issue empty legal threats on the internet all the time, often worded like "OMG u insulted me i will sue!!11!!!!1"
♦ A service provider is not legally required to follow the DMCA takedown notice procedure.
♦ DMCA 512 is United States law, not international.

In other instances, for example, Service Provider A treats DMCA notices wrongly as court orders because the Service Provider A's own Service Provider (Service Provider B) treats them as court orders so Service Provider A doesn't want their own service cut off.

Anyway, sometimes someone steals your copyrighted content and you didn't register it somewhere and want the copied content taken down, there isn't much else out there to deal with it. So that is why we'll be taking the DMCA takedown notices from people. Your best hope with a DMCA is if the accused doesn't file a counter notification, and then the same material is put back and we have proof it is the same person who did not answer the DMCA, then we can proactively remove it.

To begin with, below is a candid explain of how the DMCA takedown notification procedure works.

1. Accuser sends the DMCA legal threat notification and is not required to prove that their contact information is valid, such as a self-addressed, stamped envelope. If Service Provider requires verification before acceptance and if Accuser is using a fake identity to send the DMCA, then Accuser just goes up the chain of service providers until one is willing to fall for a fake DMCA notification sent over and over again by a chain of fake identities. So the cost and time of verifying Accuser is the burden of Service Provider, who does not have money to track each person down.
Even if Accuser is sending it from their own real identity, they may be sending it through a DMCAbot. Most DMCA and Cease and Desist letters sent by email are fake, usually delivered by bots. See Slashdot. A person had the filename "INFMapPacks123FULL-MAN.zip" and got a DMCA for having "Pac" and "Man" in it. Another person has Godzilla as the first part of their email address and gets Cease and Desist letters about it. People with any software with the word "Office" in it gets DMCA'd by a bot that thinks anything with the word "office" in it is a pirated version of Ms Office. Filenames with "Junior" in them get DMCA'd for movies with "Junior" in the name. Someone register techcomputerbay.com as a domain and within 24 hours got a DMCA because "e" and "bay" were in the domain name.

2. Service Provider gets the DMCA notification. They can ignore it or forward it to their customer, but usually they take the material down. Often, Service Provider, ignorant of the whole text of DMCA 512, thinks that by removing the content without even verifying that the DMCA sending is real will get Service Provider legal protection under DMCA 512.

The 17 U.S.C. Sec. 512. Limitations on liability relating to material online [DMCA Safe Harbor provisions] states verbatim that the DMCA notification of alleged infringement must include:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(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.

If you have access to the Internet or live where there is public access, you have an email address. Even people in countries like Nigeria with a lot of poverty can always get email addresses. Anyone can go to a free email provider and create a free email address so an email address is always considered "available." An email address that blocks legitimate email as spam so we cannot contact it is not as the bill states, "sufficient to permit the service provider to contact the complaining party."

It then says that if it is missing any of this, Service Provider does not have to act on it. Sometimes Service Provider may act on it anyway.

DMCA takedown pic. image licensed Creative Commons Attribution 2.0 Generic downloaded from http://www.flickr.com/photos/23685734@N06/2257317362/ copied 10/03/08

DMCA takedown pic. image licensed Creative Commons Attribution 2.0 Generic downloaded from http://www.flickr.com/photos/23685734@N06/2257317362/ copied 10/03/08

3. According to the text of DMCA 512, the material stays down for ten days no matter what, even if Accused sends an immediate counter-notice. Service Provider does not always enforce this and sometimes puts it back up immediately after the counter-notice.

Then...

3a. If Accused is a fly-by-night type, they do not answer with a counter notification and instead they open a new account with Service Provider who can't stop them from making a new account without forcing all legitimate new users away.
4a. Process repeats.

Or...

3b. If Accused is intending to stay, they then send a DMCA counter notification of which the law also does not require them to prove to Service Provider that the contact information they put is valid.

The legal requirements of the counter-notification are:

(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Usually, Service Provider is a lot more strict about this.

4b. The DMCA legal threat notification and counter notification is a game of chicken and Accuser rarely takes the matter to court either because in addition to having to take Accused to court where Accused lives, Accuser either is (1) a fake identity, (2) a real identity who is sending frivolous legal threats, or (3) a real identity who is a victim of some offense and tragically they have no money for legal battles since in civil court whoever can afford the best lawyers (or even a lawyer at all) always win and politicians aren't trying to correct this corruption.

Sometimes, though, Service Provider will violate the law of the DMCA and will just take the material down and make Accused repeat the process after receiving a repeat notification. This happens both if Accused is trying to sell something and the listing number changes as well as when the URL remains the exact same such as a video hosting website.

Commonly, Accused will resend the DMCA notices while never taking Accused to court and Service Provider will see them all and wrongly think Accused is in big trouble so will cancel Accused's service. The DMCA law says that service providers must suspend the account of a repeat offender but that a repeat offender must be proven in court and not someone merely accused a lot.

So, as you see, the DMCA legal threat notification is generally used by those who don't actually intend to take the accused to court and if you have a court case, you can take someone to court without filing a DMCA. Legal cases are huge expenses and often won by those who can afford the best lawyers or even who can afford a lawyer at all.

DMCAs basically rely on the other party to not file a counter notification. For instance, if someone steals your text to sell one of your items, you would want them not to counter notification and then if the same copied text keeps reappearing (on one or more accounts), then it is obvious enough to take down as copyright infringement without a notification. This is preferable to having to having to take them to court.

How we will do the DMCA notices at Random Plaza

We will mainly sticking to the actual DMCA process, with some small notes.

We will only take them by physical mail. This is because the requirement of physically mailing the DMCA cuts down on fake notices and most envelopes will usually tell the general area where the accuser mailed the item from so it is harder for someone to send multiple DMCAs with fake identities across the world. We have not received DMCA notices yet so we have not rented a post office box for this purpose. Please use the contact form to let us know if you intend to send one.

If you require us to wait in line at the post office and sign for it, we probably will not pick it up. Beware of mailing methods like Express Mail as those usually always require signature.

Our webhost is outside North America and if someone sends a DMCA notice to them, they will not act on it and simply forward it to us.

We can only be as strict on verifying the identity of the person sending the notice as we would be to verifying the identity of who is sending the counter-notice as it must be fair to both.

We will be sending a copy of the DMCA notification to the accused and sending it electronically to save us money.

To be fair to both parties, the accused will also need to physically mail their counter-notification to us. The same also holds true that if the accused makes us have to stand in line to sign for it, we probably will not pick it up.

If filed, we also will be sending the accuser a copy of the accused's counter notification electronically. The accuser is required to have provided us a valid email address as explained earlier. Then after ten days when the accused fails to pursue legal action, we are required by law to put it back up.

How we protect sellers is that most other places don't follow the DMCA with respect to counter notifications and so people will resend the same DMCA over and over again with it being removed and put back up over and over when the law says they need a court order to have the material removed again. Instead, with us, the seller should link the notification and counter notification that they uploaded to chillingeffects.org/submit.cgi and uncheck all the "keep private" options so we can identify who is who sent it and be sure what is put up identifies the same type of material you'll use in future listings and that it identifies it was on Random Plaza and not somewhere else. Then in your listings, just link to the uploaded notice on chillingeffects.org so if the same person tries to send another DMCA, your listing won't be taken down. The note in your applicable listings on Random Plaza needs to be findable by text searching the listing for "DMCA" then if we see there already is a counter notification, then we do not remove it again.

Miscellenous DMCA information

If someone provides false contact information in a counter notification, you probably can still get a court order to have them stop listing your items. There also is a legal term called a "constructive notice" that is sent out if you can't find the party you are suing. It happens often, for instance see here and here where a judge in India used it in a dispute over whether land belonged to two Hindu gods. There has been no further news articles on the outcome of the case so if anyone knows, please contact us.

In addition, it is possible that the accused's counter notification establishes jurisdiction where the accused lives. So, if the accuser takes the accused to court, filing a motion for change of venue might mean the other party would have to come to your town to sue you. Something similar is how in the USA, the recipient of a cease-and-desist may file a request for declaratory judgment to attempt to have the case tried where they live.

More DMCA information can be found at:

What about patents?
Patents are supposedly a way to reward people for coming up with a brilliant idea. However, the patent cost is a fortune, enough to buy a decent house in a first-world country. First, you have to hire a lawyer to write up decent paperwork so you can win patent lawsuits, and then file the patent paperwork in your home country. Then you have to be able to fight in court all the people trying to rip off your idea. You also have to register your patent in every distinct patent agency around the world, which generally is every country in the world and if you don't, then a competitor will steal your idea and file for patents in the countries that you did not register. Not only that, but even if you spend a fortune to hold a patent for ten years, you have to spend it again to hold it for the next ten years and so forth.

Basically with the patent system, if you invent a physical item or a software algorithm, unless you're extremely rich or your patent goes to an employing entity that is extremely rich, someone else could file a patent in bad faith somewhere and steal credit for your invention. If an entity has one or more lawyers as an employee, that entity is rich -- most people can't afford that. Here's a news article about people protesting software patents.

A CAPTCHA-alternative, KittenAuth, was made, largely by one person. It appears to have been made to be free software. Later on, many news outlets reported about a similar Microsoft project and claimed that a Microsoft executive thought up that idea on their own; see here and here. Microsoft did at some point in time add on that their project is similar to KittenAuth, but an improvement. But who knows how many cases have happened where it wasn't Microsoft but some other company that gave no credit to the original inventor and stole the idea? In the 20th century there were many patent lawsuits related to companies stealing ideas from individuals that took decades and ruined lives, such as the intermittent windshield wiper. There's also a person called Chris-chan who came up with the idea of Sonichu and then along came someone who stole the idea and included on their website stuff about how they made several newspapers, have an upcoming TV show using the stolen idea, and got rich selling their life story due to it. (Note: the site claiming to steal the Sonichu idea is a joke/hoax site and it's included here instead of a real example for legal purposes.)

The cost to defend against a patent infringement lawsuit is four million USD. Plus, a large portion of patent lawsuits are done by patent trolls. Patent trolls are companies that will do things like patent not detailed processes, but very basic concepts that other companies have used for years like the basic concepts of things such as email auto-responders, blogging, the wheel, gunpowder, and then the patents are not written like clear engineering diagram (when done by a real inventor) and are instead written in language that's vaguer than Nostradamus's prophecies and more gibberish to a normal person than ancient Sumerian writing. Then the patent trolls go and sue companies who've been using these ideas before the patents were initially written.

If you own a patent on something and someone on this website is selling it, it is better to go after the manufacturer than going after individual merchants who might not even know that it violates a patent. Small sellers have a lot of strife getting good suppliers and they sometimes end up getting suppliers that rip tem off. If the seller is manufacturing the item, then the tried and true method of tracking them down is buying a sample and tracing them that way. Sure we could ban the seller, but no website can permanently keep out a user who is persistent on returning.

The purpose of all this is so we shut down real intellectual property violations but do not shut down listings that are innocent of intellectual property violations.

Some links

Funny response to Warner Bros legal department