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DMCA Takedown Response

Dear Demand Media,

I write on behalf of Demand Studios Sucks or demandstudiossucks.com (DSS), which is a blog and forum site devoted to news about as well as commentary & criticism of Demand Studios and Demand Media, Inc.

I acknowledge receipt of your request to expunge certain allegedly infringing material from both the forums and the blog on DSS. We are presently consulting with our legal advisors and the Electronic Frontier Foundation regarding your requests. In addition, we have been in communication with our Internet Hosting Provider, to whom you also served notice.


– Slight Video Interlude –



Link to Video on Youtube


In deference to your claims, but without acknowledging wrongdoing or infringement, we have — for the time being — removed all images and allegedly infringing material from the forum post referenced in your request.
http://www.demandstudiossucks.com/forum/viewtopic.php?f=6&t=2923

With regard to the blog post, http://www.demandstudiossucks.com/2011/01/demand-media-on-quality/ , we assert, without equivocation, that this content falls well within the commentary and critique provisions of the fair use doctrine. Let’s be honest – if ever there was a case of unequivocal fair use, this would be it. The image in question was presented publicly as part of the Demand Media retail roadshow in advance of the company’s initial public offering. Although you may deem this material to be an “internal presentation regarding the company’s business plans,” it was — in fact — presented to the public on multiple occasions during the runup to the company IPO and purportedly after. Any alleged trademark infringement due to this image is incidental and also subject to the unequivocal commentary and critique provisions of fair use. Furthermore, as I’m sure you are aware, alleged trademark infringement is not subject to the provisions of the DMCA.

Should Demand Media continue to pursue this spurious claim, we are prepared to defend ourselves to the fullest extent allowed by law. Please keep in mind that Section 512(f) of the DMCA creates liability for knowingly making false claims in a DMCA takedown notice. See 17 U.S.C. § 512(f). Your lack of proper consideration of the protections of fair use doctrine could well serve to the court as evidence of bad faith on behalf of Demand Media and subject your company to such liability.

I call your attention to two particularly relevant items of case law:

In Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008), the court found that, “[I]n order for a copyright owner to proceed under the DMCA with ‘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, the owner must evaluate whether the material makes fair use of the copyright.’ 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.”

In Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), the court granted summary judgment regarding the fair use defense, and according to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit.

If Demand Media should elect to file a civil lawsuit in federal court seeking statutory damages, we reserve the right to pursue counterclaims and seek damages and fees to the fullest extent accorded by law. We, and other interested parties, are quite serious about our constitutional rights granted by the first amendment and our common law rights provided under the doctrine of fair use.

This email is not a complete recitation of the facts and legal arguments related to this matter and nothing contained herein shall be deemed a waiver of any rights or remedies which Demand Studios Sucks may have in connection with this matter, all of which are expressly reserved.

Sincerely

Patrick O’Doare

14 comments to DMCA Takedown Response

  • DMCA intrudes a trademark and the rights owner wants to remove use of the infringing content through the Online instantly. It could change the need to computer file a legal action and search for expensive injunctive comfort.

    Like or Dislike: Thumb up 0 Thumb down 1

    • The Batman

      If you are going to spam, at least try to be accurate. The DMCA does not apply to trademarks. Look up what the acronym stands for before spamming your shit.

      Like or Dislike: Thumb up 0 Thumb down 0

  • Bunny Boo Boo

    I used to write for DMS. And now I’m on this site. Apparently they recently (shows how dumb they are) hired a PR expert and I’m sure this is part of the brilliant plan to improve business. yuk yuk. Hilarious. This company is so poorly run, it’s a miracle it’s still in business. What I can’t get, are the staffers, and how they’re able to sleep at night going on to the forums, regurgitating, whatever they’re told to vomit up to the writers. There’s no way THEY’RE paid well. I wish I could email all of them personally and say “you hate yourself, don’t you?” There are so many writing and editing jobs in the world, so many. NO ONE should work for DMS.

    This business is a joke. And I thank God, that I got out of there to find much better paying writing gigs, with (more importantly) better clients.

    Well-loved. Like or Dislike: Thumb up 4 Thumb down 0

  • whee

    Any lawyer reading that reply will rofl.

    Fair use isn’t a common law right; it’s statutory. The first amendment only applies against government action. And the case law is so generic that you might as well be citing the case of Finders v. Keepers.

    Like or Dislike: Thumb up 5 Thumb down 2

  • Overcast

    Takedown notices like this, only serve to confirm that company’s suck, lol

    Well-loved. Like or Dislike: Thumb up 4 Thumb down 0

  • disCONTENTed

    Patrick, I’m not a lawyer and have no clue as to the legal merits of the argument on either side, I but have to say GOOD FOR YOU IN STANDING UP TO THOSE COCKSUCKERS!!!

    If they had “Foul!” cried on their never-ending bullshit by everyone they tried to fuck over every day, maybe they’d clean up their act.

    I hope your letter causes them to blink — at least twice — get off their high horse, and start tending to the myriad deficiencies in that fetid dung-heap they’ve created for themselves. If they weren’t such total douchebags, a site like this wouldn’t need to exist.

    Well-loved. Like or Dislike: Thumb up 9 Thumb down 0

  • What Demand Studios don’t seem to realize is that there is such a law as “fair use.” It is clearly written in the constitution. I work under that law any time I do article writing. A sentence here or there constitutes fair use and that is how it works. So if this forum uses an image or a phrase that belongs to Demand Studios, they are permitted to use it.

    Well-loved. Like or Dislike: Thumb up 10 Thumb down 1

  • To Bing Bang Boom...

    You acknowledge that you are a mental reject, which is obviously true, but it does not bolster your argument, you dumb cooze. Demand Media produces shit thanks to no-talent buffoons such as yourself. If you need the money, boo-hoo for you. But that doesn’t change the fact Demand media is a shitty, exploitative company. No wonder you work for them; it’s the best you can do. But defend them? You are a fool.

    In the name of all that is good and decent, cross your legs and stop breeding. It would also help with the smell wafting from between your rancid thighs.

    Hot debate. What do you think? Thumb up 7 Thumb down 7

  • Bing Bang Boom

    Hidden due to low comment rating. Click here to see.

    Poorly-rated. Like or Dislike: Thumb up 1 Thumb down 11

    • I don’t care what your health condition is, by working with such assholes, you are simply encouraging them to continue to exploit writers. I used to work with them until I realized what they were doing. Come on. Take pride in yourself. $10 for a 400 or 500 word article is nothing.

      If you don’t think you can get better clients you don’t think highly of yourself and maybe you should be put into a mental hospital. Give us a break.

      Hot debate. What do you think? Thumb up 5 Thumb down 4

      • I’m with BBB, I too have asspergers and tonsilitis and I depend on eHow for my Depends, Lithium, lithium ion batteries, dildo batteries and michaelina frozen dinners. Everybody should shut up and go back to work so that eHow can continue onward into SEO and Adsense Valhalla. I lust after my neighbors hohos. Covet not, biotches.

        Like or Dislike: Thumb up 1 Thumb down 3

  • Scribe on Demand

    This is awesome. You guys are my heroes!

    Like or Dislike: Thumb up 4 Thumb down 2

  • Gotta Lawyer?

    P.S. The fact that you have not set your Google AdWords account to block your ads your ads from being displayed on our website means that you don’t, in fact, believe DSS damages your business.

    Well-loved. Like or Dislike: Thumb up 12 Thumb down 2

  • Oh, Hell YES.

    Beautiful.

    Demand Media Studios scumbags show the world once again, as if anyone needed any convincing, that they are utterly without class, business sense, any notion of effective public relations and are devoid of common sense.

    Plus, the top executives are all degenerate pig fuckers whose double-jointed freakery enables them to lick their own genitals when they finish with the swine. I read that on the DMS official forums, so it must be true.

    Fuck Demand Studios and their entire bullshit, expolitative operation. And for those who don’t like this post, fuck you too (hiya writer bitch!), and die in a fire. I don’t care.

    Well-loved. Like or Dislike: Thumb up 9 Thumb down 4

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