Not only a questionable claim, but an absurd one: Our DMCA complaint

A recent episode that affected this site serves as a reminder that not only is the DMCA law regularly abused, but that well-intentioned, even careful, bloggers bear the brunt of litigious extremists.

Last week, my hosting company and Cloud Flare (an intermediary) received a DMCA complaint regarding Doubtful News.

I have redacted parts because the complainant is – how can I put this nicely – overly protective of her name and trademark. Only the bracketed parts have been changed in the quote below:

I, […] does not give this owner of website (s) permission to use my trademark name for any advertising on the internet or anywhere being that the words “Psychic” and “[R]” are not to  appear sequentially in any domain name, on any website including the description, content, and meta tags.  As the Federal Court Judge Ordered there should be words in between the word “Psychic”  and “[R]“

The post cited was this one, reporting on a news item of some note that was also covered by mainstream press.

This person has trademarked her psychic name (not her real name). She alleged that I am using that trademark. I contend that I did no such thing. The post in question had nothing to do with this person. It also did not “advertise” anything. I did not capitalize the word “Psychic” but was using that term colloquially, not specifically. It just so happens that the name in question was not uncommon, either.

I responded to Cloud Flare declaring the absurdity of the claim. A week later, I receive this from my web hosting company:

We received a complaint that you posted certain infringing material on your website without the owner’s authorization.  This email is to notify you of the suspension of your web hosting account and related services pending resolution of this matter.

As you know, our services permit customers to host and make available content over the Internet. Although we do not affirmatively screen customer content, we also do not tolerate infringing material on our equipment, and may suspend a site that appears to infringe on any intellectual property rights. Due to the potential legal exposure to us, no prior notice of a suspension is generally given and in most cases customers are informed by the complainant of the complaint.

Therefore, my site was offline (with even the backend inaccessible) from at least 5PM EST on October 29, 2013. In order to get the site back up and running, I was forced to acquiesce to this ridiculous request even though I did not infringe. After filling out a form attesting that I would fix the problem, I was given access back to the site at around 6:30 PM. I then revised the post to remove the word “psychic” but admitted zero wrongdoing in my followup to the hosting company. I also sent an email to the complainant to explain my position, hoping to resolve the matter. At the time of this posting, I have not received a reply. A cursory search of Google did not reveal that she had any record of legal action. But I noticed that the original post is still out there.

The COPYRIGHT CLAIMS POLICY for the web hosting company says this:

[…], INC. (“[…]“) supports the protection of intellectual property.

But not their customers right to speech, I guess. It would have taken all of five minutes upon examination of this claim to see that it was baseless. But the hosting company did not do that. They may get dozens of these complaints, so I understand they do not wish to get involved, however, it would have taken so little to show this for what it was. In two previous incidents that I inadvertently used a photo that was later claimed copyrighted, I immediately removed the material as requested with apologies. A DMCA complaint was not needed. I am happy to comply if I am in the wrong. This was not one of those cases.

The strong-arm process by the complainant and the hosting company was disrespectful and revealed their lack of integrity. I told the web host in no uncertain terms that I would be seeking another provider.

From this background, clicking on the links, you can see that the complainant might potentially be hurt by this unrelated news event coming up in Google search results. I have no control or influence over that. The fact that psychics get busted all the time (happily, more so recently) for fraudulent activity has zero to do with me. I advise you, reader, to use the obvious clues in this piece to locate the complainant’s web site and have a look at her business yourself. You may have to pick your jaw up off the floor. The claim she made about my site was nothing compared to the incredible claims she makes for herself.

Screen Shot 2013-10-30 at 1.38.57 PM

Gee, that looks like use of a copyrighted name to promote herself, doesn’t it?

Once you’ve digested the story here, you will see that there is no point in me contesting the DMCA notice even though I did nothing wrong. I do not need the material restored because it was never there to begin with. DMCA ought to be used for meaningful theft of intellectual property. Mistakes can be rectified easily but this is neither a mistake nor a theft. I believe this person SHOULD face charges for false claims that waste everyone’s time but this is such small potatoes and is nothing against me personally that I can’t bring myself to spend the time. Therefore, I hope that my documentation of this may help others and show the web hosts they do have some responsibility to their paying customers.

Thanks to those of you who followed my plight last evening and offered to mirror the site or supply help with a legal battle. I do have a lawyer at hand but I doubt this rises to that level (when the issue at play is so obvious and silly).

But, this incident, as I said, does spur me to seek out better hosting options from a site that will not hang me out to dry in a New York minute. Also, the rush of hits from a piece caused the servers to go out multiple times on Thursday as well. That is not acceptable. Due to our high server loads, we must now pay an amount that is more than trivial. While we have recouped immediate costs thanks to our supporters in the past, this new configuration will require about three times the cost. On the bright side, this means that DN is WORKING. People are visiting the site. We are being noticed!

Please note that DN is run as part of a business in order to comply with tax laws. I will not make a profit from this site this year, not even a few bucks, considering my input costs. The two of us that run the site every day do not get paid for the hours spent researching, writing and maintaining the site. It’s completely voluntary.

Therefore, I ask that if you value the site, you would please pledge at least $5 a month as a subscriber to cover reoccurring costs of the web site or make a one-time contribution that we can use continue the site, including fees for legal counsel as needed. Reader support also helps me on days when I want to throw my hands up in the air and say it’s not worth the hassle. If you wish to pay with a method other than paypal, please email editor (at) doubtfulnews.com

Thank you to all our existing supporters. I will be updating the supporters page soon to reflect those that have ever contributed even a $1 to Doubtful News.

It’s an uphill battle to do this site but we feel it’s been worthwhile. If you feel that too, please consider showing us your support.

  24 comments for “Not only a questionable claim, but an absurd one: Our DMCA complaint

  1. November 1, 2013 at 6:28 AM

    Loving the 90’s web design (/sarcasm). The mis-use of DMCA complaints is a joke, it’s fast becoming the favorite tool of charlatans and cranks to shut down criticism of their pseudo scientific exploits.

  2. Bob
    November 1, 2013 at 8:04 AM

    Well, there goes our right to refer directly to corporations like McDonald’s, Netflix, and Dirty Grandpa Buttplug Manufacturers, LLC. Thanks, Obama!

  3. November 1, 2013 at 9:03 AM

    That is the dumbest thing I’ve ever heard – both the original complaint and the idiotic response by your host. Were we to receive a DMCA notice like that, we’d have told the complainant to go pound sand, especially since it’s clear to any reasonable person there was no advertising going on. Just because someone has trademarked their name (or a phrase) does not mean you can’t merely mention it in the course of commentary. We certainly wouldn’t have shut down an entire site because of it. That’s like shooting a patient because they have a cut on their finger.

  4. Izzy
    November 1, 2013 at 9:05 AM

    I believe the term “New York minute” is trademarked.

  5. Mike
    November 1, 2013 at 10:04 AM

    “The fact that psychics get busted all the time (happily, more so recently) for fraudulent activity has zero to do with me.”

    I wouldn’t be so sure about that. After all, t’s people like you who are making the public better informed about these things, and thereby changing attitudes in general such that police and prosecutors are less hesitant than they once were to go after these con artists.

    The fact that more psychics are getting busted has a good deal to do with you and those like you, and you may take well-earned pride in that!

  6. Brandon
    November 1, 2013 at 10:19 AM

    Guilty until proven innocent (if they even care about that). The DMCA is a horrible law.

  7. November 1, 2013 at 10:39 AM

    Online providers have a responsibility to evaluate DMCA notices to make sure they are valid and pass a basic sniff test. The provider here failed at that responsibility–individual words are not subject to copyright, period. DMCA is for copyright claims, not for trademark claims, and there is no DMCA safe harbor for trademark claims. This DMCA notice should have been rejected by the provider.

  8. Chris Howard
    November 1, 2013 at 11:53 AM

    So I realize that this is off topic, but have you considered merchandise? T-shirts, mugs, stickers, etc. Anything to raise money via schwag, and shameless hucksterism?

    • November 1, 2013 at 7:24 PM

      Chris Howard, you might wanna take a look to right sidebar. We got some merch available via Zazzle and we get percentages off of sales from Amazon if you buy through our affiliate links here on the site.

  9. November 1, 2013 at 12:12 PM

    In my personal opinion the DMCA laws should either be scraped or atleast amended to prevent overuse and abuse such as what happened to here. Until then website hosting companies need to show more backbone and not automatically give in whenever a DMCA complaint is launched.

  10. November 1, 2013 at 1:35 PM

    “Online providers have a responsibility to evaluate DMCA notices to make sure they are valid and pass a basic sniff test. The provider here failed at that responsibility–individual words are not subject to copyright, period. DMCA is for copyright claims, not for trademark claims, and there is no DMCA safe harbor for trademark claims. This DMCA notice should have been rejected by the provider.”

    Very true – the original post referenced a copyright complaint while here it’s clear it’s a claim of trademark infringement, which is not covered. As one of said providers, though, I can tell you that the real whiners (like this Ruth whoever) can’t be bothered to understand the difference. What’s even worse is the people who write to us complaining that someone is linking to their site (without permission, zomg!), and thus infringing on their trademark. You can imagine what my response to those people is.

  11. November 1, 2013 at 1:36 PM

    Do you realize how many Doubtful News items piled up in my Inbox while the dang server was down? . I’m appalled at the apparent misuse of DMCA,

    On a related issue: I tried finding the Rose M website but despite “the obvious clues” which seem to be not so obvious to me, I could only find hundreds of news stories about the trial and conviction. In retrospect, I guess that’s a good thing.

    And, related to Bob’s comment above, I don’t see what “McDonald’s, Netflix, and Dirty Grandpa Buttplug Manufacturers, LLC” has to do with Obama. Wasn’t the DMCA enacted in the late 1990s? Maybe Obama was hatching the DMCA from his super-secret fortress in Kenya at the time.

  12. Bob
    November 1, 2013 at 2:27 PM

    It’s a joke. It’s a thing that makes people laugh. The Thanks Obama meme is a comment on how everything that happens is blamed on Obama. No towels in the men’s room? Thanks, Obama! The bank bailouts? Thanks, Obama! Can’t plug Dirty Grandpa Buttplug, LLC by name? Thanks, Obama! Also, explaining a joke defunnies it. :)

  13. YetAnoutherBrian
    November 1, 2013 at 4:22 PM

    Jim V, try putting one of the sentences from the image into a decent search engine. Enclose the entire sentence in quotes. My psychic sixth sense and ethereal third eye (derived from Horus himself) predict that you might find what you are seeking.

  14. November 1, 2013 at 4:42 PM

    Bob…much funnier now that it’s ‘splained.

  15. November 1, 2013 at 5:01 PM

    #YAB: OMFG. That is amazing. I feel soiled just wading through the blathering. I especially liked “ASK ANY FEDERAL JUDGE AND HE WILL SAY, “I am….” It’s almost like someone with no knowledge of law–even less than me–thinking they can just throw a bunch of words against the wall and seeing if any of it sticks. It’s worse than the faux-legalistic notices at the end of certain emails or social media profiles claiming all sorts of extraordinary legal protection and threatening dire consequences for reading something that was mistakenly sent to you or using their public information for research purposes.

    I feel sorry for people who are driven to the site in desperation. But for a domain/server/host to spend more than about 5 seconds before dismissing this as the rantings of a delusional maniac is inexcusable.

  16. November 1, 2013 at 7:11 PM

    What’s wrong, Jim? You don’t like being bound to a confidentiality notice at the bottom of an email sent to you that presumptively contracts you without your prior consent to keep their blatherings just between you and the sender (especially if they’re a nutter, which makes it all the more fun)? Why do you hate all the armchair lawyers in America??

    /snark

  17. Brian
    November 1, 2013 at 10:27 PM

    If this woman is all of this psychic nonsense and a bag if chips besides- why go legal whiny? Powers don’t work on most weekdays? Easier to summon a lawyer than a demon… I would figure it’s the same both sides. Lawyer charges less?

  18. Chris Howard
    November 2, 2013 at 11:03 AM

    Oh, sweet! For some reason the Zazzle link isn’t showing up on my iPhone (which is where I access DN from)

    I’ll be drinking bourbon from a DN coffee mug in the Creation Museum in no time!

    (If anyone at the museum asks I’ll tell them that I’m the unaffiliated jack ass of the skeptic movement) ;-)

  19. November 3, 2013 at 11:14 AM

    Sharon, I would love to send you a dozen roses, but I think you may object to the name of that particular flower. And, everyone knows a rose may also be psychic.

    • November 3, 2013 at 11:19 AM

      I like black ones. They are evil.
      >:-)

  20. Chris Howard
    November 3, 2013 at 11:41 AM

    I don’t care who you are, Dirty Grandpa Buttplugs are funny, even if you have to explain it… Obama.

  21. November 3, 2013 at 5:45 PM

    Sharon this sucks, we all have your back and i will share in the Aussie groups xx

  22. November 8, 2013 at 10:32 AM

    For what it’s worth there are two charlatans trading under that name who come up when googling. One in the US & one in NZ

Comments are closed.