DMCA Complaint To Google Incorporation And Notice To Google India

As many of you may be aware that we are currently pursuing a copyright violation, trademark infringement and impersonation matter with Google Incorporation and Google India. Further, Perry4Law and Perry4Law Techno Legal Base (PTLB) have also provided their suggestions to US Copyright office regarding remedies for small copyright claims in United States so that interests of small copyright holders can be protected.

In many cases the trademarks and copyright violators hide behind the Google’s platforms and contacting Google becomes the only available option. The case we are presently pursuing with Google US and Google India is one such case.

We have been managing many blogs and the offending blog in dispute was one of them. For suitable arrangement of our contents, we shifted the contents of the same to another blogspot address in the past. However, before we could block the previous blog address somebody else registered the same and misappropriated it. The only content available at the offending blog belongs to us and is our copyrighted content. Even the title and style of the offending blog is ours and many people still consider the same as our blog.

This amounts to not only violating our copyright and trade mark but also an act of impersonation. We have contacted Google earlier but till now no such action has been taken. We have once again contacted Google Incorporation on 22-01-2012 and filed a DMCA complaint for copyright violation, trademark violation and other allied issues.

We are waiting for the response of Google Incorporation vis-à-vis copyright violation. Further, a response regarding trademark violation has been given by Google Incorporation against which we have asked for further details and clarifications. So for the time being our DMCA complaint is still pending before Google Incorporation for all the matters.

We intend to pursue this matter at both US and Indian levels with various judicial, quasi judicial and administrative authorities. The process in this regard has been started in US through DMCA complaint. Through an e-mail notice we have also expressed our desire to take all possible legal and administrative actions, wherever applicable, against Google India Pvt Limited as well, unless the infringing activities are discontinued within 36 hours of serving of this notice. We have also sent an electronic legal notice to Mr. Thirumalesh Gangappa, the official legal representative of Google India on 27-01-2012.

As per the Information Technology (Intermediaries Guidelines) Rules, 2011, the “safe harbour” protection of Internet intermediaries like Google is lost the moment they become aware of “objectionable contents” that include intellectual property violating contents. Now the matter has been brought to Google (US and India) actual and express notice, and they are required to comply with the IT Rules 2011.

The offending blog in question has acquired distinctiveness and goodwill in our favour and many people and institutions still associate that blog with Perry4Law. Some are in fact posting legal problems to be redressed by us. However, since the control of that blog has been transferred to some other person, we could not do much in this regard. The only content available at that blog belongs to us that also violate our copyright.

We have already filed a spam report with Google US and have also used the Google US help forum in this regard. As far as the copyright violation DMCA complaint is concerned, besides the entire blog, we have also provided the specific links that are violating our copyright. We have also proved that the contents, tiles and blog in question were used by us since 2006-2007.

We have raised our legal concerns with Google Incorporation and Google India in this regard in every possible manner. We have used DMCA complaint form, Google’s Help Forum and also used the e-mail method for contacting Google Incorporation and through another communication we have brought this fact to Google India’s actual knowledge.

We expect Google Incorporation/Google India to transfer our blog address back to us and remove the copyright violating material. This transfer is also required so that we can remove the offending comments and impersonation, trademark and copyright violations committed by the present owner who seems to be acting mala fide with ulterior objects. Since the parties to the dispute are Indian and Indian courts have the jurisdiction over the matter that we intend to invoke.

Further, US government needs to change its policies towards foreign IP infringements and enforcements. Incidences like these are responsible for enacting harsh laws like SOPA and PIPA. These incidences are also responsible for filing of civil and criminal complaints against companies like Google in India.

Indian government and Indian courts need to consider these aspects while deciding various cases against foreign websites and social media platforms. If Indian intellectual property and cyber laws are not respected, there is no other option but to choose a harsh stand of foreign websites blocking in India.

The matter would come for hearing before the Delhi High Court on 02-02-2012 and we hope the Delhi High Court would take judicial note of these facts also while adjudicating upon that matter.

Remedies For Small Copyright Claims In United States

The costs and time of litigating a copyright or trademark violation case in a traditional court is deterrent sufficient enough to avoid the same. This is the reason that a majority of such copyright or trademark violation cases go unreported.

The Unites States Copyright office has started a public discussion and opinion gathering exercise regarding providing remedies for small copyright claims in US. The purpose of this exercise is to empower copyright holders of small claims to enforce their copyright rights effectively and adequately.

Of late, US based websites and companies are increasingly found in legal battles in US and other jurisdictions. For instance, Google and Facebook are already facing criminal trail in India. Similarly, a recent news report suggested that Wordpress should be blocked in India for not following Indian laws.

This is a clear sign that US policy towards foreign IP enforcement needs to be changed. If US websites and companies keep on ignoring Indian intellectual property (IP) laws and cyber law, draconian laws like SOPA and PIPA can be imposed upon them. Even trademark issues in the online environment are required to be tackled by US government. If these US websites and companies keep on ignoring Indian laws and if nothing works, Indian government can and should block such offending websites in India.

Many US websites and companies are not following the requirement of Digital Millennium Copyright Act (DMCA) 1998 (DMCA) that confers a “safe harbour” protection upon them. In the absence of meeting the DMCA requirements, these websites and companies cannot claim immunity from civil and criminal proceedings.

Perry4Law and Perry4Law Techno Legal Base (PTLB) have provided their suggestions to the US Copyright Office regarding remedies for small copyright claims in US. These suggestions recommended adequate compliance with DMCA requirements by US websites and companies, sufficient compliance with DMCA notice conditions, appointment of DMCA agents, registration of DMCA agents with US Copyright Office, etc.

Further, Perry4Law and PTLB have also recommended scrutinizing the role of online advertisement companies that provide their advertisements upon copyright infringing materials. Another suggestion pertains to analysing the feasibility of demand of companies like Google to file a court case to continue to remove copyright offending materials by it upon its platforms and advertisement programs.

We hope the US Copyright Office would find these suggestions useful and would incorporate the same in any new policy, guideline, rules or legislations intending to protect then interests of small copyright and trademark claims makers and their owners.

Google Must Address Trademark Violations Problem At Blogspot Blogs

Recently we came across an interesting situation vis-à-vis Google’s Blogspot platform. This seems to be a situation over which Google has almost no control. Google allows opening of blogs if an address is already available. However, if the address is not available or it has been blocked or suspended for violation of Google’s terms and conditions, the same address cannot be used as a blog address.

However, this sensible arrangement of Google still does not prevent cyber squatters from violating trade marks and copyright of others. If somebody violates the copyright of another person, Google provides a mechanism through which such violation can be prevented or redressed. However, no such redressal mechanism seems to exist for preventing trade marks violations by malicious users using Blogspot platform.

Clearly, using well known trade marks and names as well as names and marks that have acquired a reputation, goodwill and distinctiveness by malicious users at Blogspot is a clear violation of trade marks laws of various nations.

Blog addresses at Blogspot are domain names and are entitled to domain name protection in India. We have no dedicated cyber squatting law in India and domain names are still treated as part of trade mark of the concerned owner. We are currently pursuing one such peculiar case where issues of trademarks and copyright violations are involved. Even issues of mala fide use of blogs and impersonation are involved. A DMCA complaint has also been filed with Google in this case.

What is more surprising in the present case is that mala fide users are hiding behind Google Blogspot. In our case, the accused blogger has neither provided contact information nor has he provided any other detail through which we can pursue the matter with him. In short, he is hiding behind Google’s identity and if Google does not take any action against such offenders, this would encourage more people to indulge in such acts.

If a person is not providing any contact details or other details and is even not responding to the comments posted on such platform, how can a trade mark or copyright owner pursue his/its case with him. Further, by supporting such trade mark and copyright offender, even Google may be liable for the acts or omissions of such blogger.

Many foreign companies and websites are facing a criminal trial in India for offending contents posted on their platform. With growing cases of copyright violations and trademark violations by users of such platforms and websites, the trouble of such websites is going to increase. We would come up with more details of this case once we receive or not receive an official response from Google in this regard.

US OSPs Are Imposing SOPA And PIPA Like Laws Upon Themselves

The tussle between intellectual property (IP) owners and online service providers (OSPs) in US is a continuous one. The IP owners are always looking forward for more stringent online IP protection laws whereas OSPs are more anxious to have a level playing field with no unreasonable liabilities.

Laws like Digital Millennium Copyright Act (DMCA) 1998 were enacted to maintain a balance between these conflicting interests. Online Copyright Infringement Liability Limitation Act (OCILLA) was also passed as a part of the 1998 DMCA. In fact, new laws like Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA) and the "Stop Online Piracy Act (SOPA) have also been proposed.

Obviously, both SOPA and PIPA would have far reaching consequences for OSPs in US. Those supporting laws like SOPA and PIPA believe that the DMCA doesn't work against websites that just ignore the requests. This is a truth as we also have been facing such problems from US websites operators who are openly and repeatedly violating our copyright.

Surprisingly, a majority of such US sites are not entitled to “safe harbour protection” at all as they themselves are not complying with the requirements of the DMCA. They do not understand that they are engaging in serious criminal offences by refusing to take down copyright violating posts, especially once the matter has been brought to their knowledge and they are not in compliance with DMCA requirements.

Naturally, US need to change its policy towards foreign IPRs violations. Either US must implement DMCA in a manner that prevents copyright violations of foreign nationals and organisations or it must devise some other method for foreign IP enforcements. Initially it seemed US has decided to adopt the latter approach by proposing laws like SOPA and PIPA but now it appears to be a national IP protection mechanism of US citizens and corporations and not foreign IP holders. Other countries can also follow this option and this situation has been imposed by US OSPs upon themselves as they are flouting copyright laws across the world with great disregard.

According to proposed laws, foreign websites that are indulging in unethical behaviours like cyber crimes, intellectual property rights (IPRs) violations, etc can be forced to be taken down or blocked in US by US government as the US webhost company would be aiding criminal activities if it refuses to remove copyright violating or offending posts. However, as per the proposed laws, US would not take down domestic websites. This seems to be the real problem and India must analyse this situation from its own perspective and interests.

The foreign websites may be hosted at a server that resides in a foreign territory hence such websites cannot be taken down and blocking of such foreign websites in US remains the only option. There are many US sites that are hosted upon US servers and they openly violate copyrights of others, including India. Can India take down such sites? Obviously India cannot do so and blocking of such websites in India seems to be only other option. By not taking down copyright violating materials of foreign jurisdictions, US OSPs are inviting big troubles and draconian laws for themselves. Of course, Google seems to have a good system at place that forces such unscrupulous online advertisement revenue generators to comply with laws.

However, a question arises what should India do to protect copyright of its citizens and Indian organisations when the DMCA system of US collapses or OSPs do not comply with the same? Here are some options in this regard:

(1) Blocking of copyright violating websites in India by Indian government or its agencies may be the first method .This seems to be a actions worst than DNS redirection but if the attitude of US OSPs do not change, this may be the preferred option in India and other countries. However, blocking of IP violating websites/platforms is definitely better than using distributed denial of service attacks (DDOS) to take down the offending websites/OSPs platform or using DNS cache poisoning attacks to manipulate DNS services.

(2) Blocking of offending websites with the help of judicial orders. This may be a good option provided blocking of offending websites is done in a reasonable manner.

(3) Mutual protection mechanisms at the government department’s level between US and India. This seems to be the best option.

Perry4Law and Perry4Law Techno Legal Base (PTLB) suggest use of a “prima facie violation test” using an “informal communication method”. A majority of OSPs in US are not aware of the requirements of DMCA still they insist upon filing of a DMCA complaint. They do not realise that they are not fulfilling the prerequisites of “safe harbour protection” at all and insisting upon filing a DMCA complaint to remove clear copyright violating contents would not save them from various civil, criminal and financial sanctions.

Under the “prima facie violation test”, the copyright owner or his agent/authorised complainant need not to file a DMCA complaint and a written complaint through e-mail should be sufficient. All that is required is providing of copyright violating links and links of copyrighted materials. This is also sufficient otherwise as well because as per DMCA an OSP that is not complying with the safe harbour requirements is not entitled to its protection and an e-mail mentioning copyright violation is sufficient to impose various liabilities upon it.

We hope US would consider these suggestions of Perry4Law and PTLB while formulating any new legislation or policy for enforcement of foreign IP rights.

US Needs To Change Its Policy Towards Foreign IPRs Violations

In a recent episode of copyright violation by a blog author, Wordpress.Com was contacted to remove the copyright violating posts. However, like in the past, Wordpress kept on repeating sending of a DMCA notice and refused to take appropriate action.

Meanwhile, the author of the blog was also contacted who tried to delete the offensive posts but they remained intact. He decided to delete the entire blog to comply with copyright law requirements of India.

This is not what was required to be done but the DMCA policy that Wordpress was following resulted in this situation. This also shows how not taking a timely action by Wordpress.Com has resulted in the deletion of an entire blog that was otherwise good and informative.

All of you may be aware of the stringent IPRs protection regime of United States (US). In order to protect the local interests of individuals and organisations residing and operating in US, laws like Digital Millennium Copyright Act (DMCA) 1998 were enacted. In fact, new laws like Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act) and the "Stop Online Piracy Act (SOPA) have also been proposed.

However, is US equally anxious to protect intellectual property rights (IPRs) of residents and organisations located in other countries? For instance, US and India are both part of TRIPS Agreement that imposes similar rights and obligations towards IPRs upon all members states. If US and companies/websites like Wordpress.Com fail to respect and protect IPRs of individuals and companies of other countries, it is clearly a violation of TRIPS Agreement obligations.

Internet intermediaries like web site hosting services, Internet service providers, and search engines that link to materials on the Web have to perform due diligence in order to get benefits of safe harbour under DMCA. Section 512(c) of DMCA limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:

(a) The provider must not have the requisite level of knowledge of the infringing activity, as described below.
(b) If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
(c) Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.
(d) In addition, a service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement.

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(c)(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.

Here lies the real problem as the Internet intermediaries in US have considered a safe harbour provision as a mandatory requirement to remove copyright violating posts. DMCA provides an enabling provision that protects intermediaries from copyright liability if they follow due diligence. DMCA never claims that Internet intermediaries like Wordpress.Com cannot remove offending posts or materials even if knowledge about the same has been brought to their express knowledge. This seems to be a big loophole that US Internet intermediaries are exploiting while denying IPRs protection to foreign nationals. If this is the approach of US Internet intermediaries, there is nothing wrong if other countries block access of the websites of such intermediaries in their respective countries for not respecting their copyright laws and other IPRs laws.

Online Copyright Infringement Liability Limitation Act (OCILLA) was passed as a part of the 1998 DMCA and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

These provisions may be good for US citizens and organisations but are real hindrance for foreign nationals and IPRs holders. Why should a foreign national or organisation comply with alien jurisprudence when there is a clear case of IPRs violation? There must be some mechanism where such cases can be resolved outside DMCA and OCILLA.

Article 41(2) of TRIPS Agreement provides that procedures concerning the enforcement of IPRs shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. The provisions of DMCA and OCILLA seem to be not in strict compliance of Article 41(2), at least regarding foreign nationals. The Department of Justice of United States must ensure that an alternative, effective and easier method is available to report copyright violations by foreign nationals and companies and the liability of online service providers (OSPs) in US must be accordingly modified.