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.
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.
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.