Can You Plagiarize A Play You Licensed To Perform? The Urinetown Saga...

DMCA Abused To Get Sucks Site Taken Down

from the ouch dept

Thu, Oct 11th 2007 6:34am — Mike Masnick

Greg Beck writes in to let us know about the latest example (in a long line) of DMCA abuses. In this case, a home building company, Powermark Homes, is upset about a website called Powermarkhomessucks.com. Now, there's a long legal history around the legality of so-called sucks sites -- and in most cases, they're perfectly legitimate. However, that battle hasn't even played out yet. While it's pending in court, the company took a second route to knock the sucks site completely offline with no judicial review whatsoever: filed a DMCA complaint with the ISP hosting the site, alleging copyright infringement on the site. The "infringing" content in question isn't even infringing. It's a photo that was included as part of the court filings in the case and is taken from a trade magazine (who most likely owns the copyright). However, thanks to the wonders of the notice and takedown system, the ISP is required to take the content down for at least 10 days to avoid liability. So down goes the site, despite no infringing content and without any kind of judicial review -- while the actual case sits and waits in court. As Beck notes, this is likely to come back to hurt Powermark Homes, because filing a false DMCA takedown notice can get you in all sorts of trouble. Then, of course, doing so also has a bit of a Streisand Effect as well, as a lot more folks are suddenly hearing that there are at least some folks out there quite unhappy with Powermark Homes.

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Filed Under: dmca, isps, notice and takedown, streisand effect

30 Comments

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Matthew, 11 Oct 2007 @ 7:11am

Why don't we hear
...about the bullies getting punished for this stuff? We all know it's against the law, and yet there's no headlines stating "Company X to pay Z-million dollar fine."

If we know that it's wrong to use the DMCA for this, then why do lawyers still get away with doing it? For they, above all, should know this is illegal not to mention schmarmy legal tactics, but I repeat myself.
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Chronno S. Trigger, 11 Oct 2007 @ 7:20am

Powermark Homes?
Never heard of them before, but now I know they suck. Thank you, stupid DMCA claims. :P
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shmengie, 11 Oct 2007 @ 7:20am

this is 10000% streisand effect, fer sure. i never heard of powermark homes before. now, i know to stay clear if i ever need a home with a power mark on it.
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JJ, 11 Oct 2007 @ 7:27am

DMCA Abused To Get Sucks Site Taken Down
Simply host them on an overseas ISP, not so easy to get taken down that way
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Medbob, 11 Oct 2007 @ 7:27am

There is a solution....
There is a procedure in the DMCA where the person affected in the takedown can counter-notify the ISP that the DMCA request was not valid or legal, and an get the access turned back on quickly. A lot of folks don;t know about this provision, but it's an important part of the protections built into the DMCA by those who opposed it. These folks need to get a lawyer that understands this counter-notification process....
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Mike F.M, 11 Oct 2007 @ 7:35am

I'm going to have to stop...
...reading about these takefown notices. Every time I do, I get really annoyed about how these companies are abusing the system and just want to see it backfire on them.

These are basic human rights they are trying to control.
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Anonymous Coward, 11 Oct 2007 @ 7:38am

I would really like to know what goes through the heads of people running these companies. It should be blindingly obvious that by sending a takedown notice for such a site, they are stomping on the right to free speech that we hold so dear, and by doing so are tarnishing their public image FAR more than a "sucks" site ever could, all by themselves. These people really need to hire better PR staff, hopefully some that have at least an ounce of common sense.
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bored now, 11 Oct 2007 @ 7:51am

Shouldn't the headline have been...
Construction company lies, techdirt uses as excuse to bash copyright protection.
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Mike, 11 Oct 2007 @ 8:21am

Re: There is a solution....
However, if you read the article, you'll see that the counter-notice was already provided, but due to the requirements of the DMCA, the site must stay offline for 10-14 days in order for the ISP to retain it's immunity.

The end result is that the original complainant in this instance gets a de facto 10-14 day temporary injuction without any judicial oversight.

Great job there Congress... :-(
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Overcast, 11 Oct 2007 @ 8:32am

Need a couple of good 'Wrongful take down' suits.

And yes - the "Streisand Effect" comes into play. Any company that files a questionable take-down notice has questionable ethics, IMO. Too much competition to consider them.

I'd rather review both sides of the issue and make my decision. Now, since the 'opposition' has been silenced, I can only assume they were silenced because their complaints were legit.
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Danny, 11 Oct 2007 @ 8:38am

As much as I hate to say it...
But I think that if the people behind Powermarkhomessucks.com can prove that Powermark Homes knowingly sent a bogus DMCA notice to knock the site offline then the people behind Powermarkhomessucks.com should sue Powermar Homes and criminal charges should be brought against Powermark Homes.
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nipseyrussell, 11 Oct 2007 @ 8:41am

http://www.powermarkhomes.com/contactus.html
powermarkhomes@alltel.net
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Bob Knight, 11 Oct 2007 @ 8:41am

Boring
I went to the Powermark Homes website, and the homes do look as if they suck, boring.
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Anonymous Coward, 11 Oct 2007 @ 8:41am

No Powermark homes for me! Not after this weasel stunt...

but "Powermark" sounds like they make double-wides, perhaps? Not the moniker of a high-end home builder.
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Spam 'em to death, 11 Oct 2007 @ 8:49am

Everyone should spam PowerMark with thank-you's for letting everyone know they suck by making Powermarkhomessucks.com a news item. Who are the dipsticks advising this company?
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BigDogRMF, 11 Oct 2007 @ 9:34am

'Suck" websites...
Interesting...
I;m about to do this to a well-known grocery chain keeps closing my case without resolution or even contacting me.

Nice Customer Service. Here comes my website.
Crappy Customer Service... Same effect.
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Doug B., 11 Oct 2007 @ 9:54am

Paint me a little confused, but...
before reading the article and after reading this blog entry, I thought Powermark issued the DMCA take-down because the sucks site shows an 'unauthorized' image from Powermark's court filings (which I presumed were 'copyrighted'). The article makes it more clear that the edited image in the court filings came from the sucks site, which in turn may have taken the original from the Powermark site.

In the end it's still a bogus take-down because even though Powermark may be using the image with permission, they likely do not own the copyright for the image.

Does that sound about right?
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Ajay, 11 Oct 2007 @ 9:55am

Powermark Homes Suck This
When will companies figure out that the best way to deflect criticism is just to simply ignore it? Besides, those interested in purchasing double-wide tin cans don't know how to read, so I seriously doubt that the company's bottom line would have been negatively impacted by the existence of a web site named PowerMarktrailerhomessuck.com.
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Killer_Tofu (profile), 11 Oct 2007 @ 10:01am

Oh, I did
I sent them an email, here are the contents:

"Good afternoon,

I just wanted to say how thankful I am that you guys filed a false DMCA takedown notice to the corresponding Sucks website (powermarkhomessucks.com).
Now I know all about how the sucks site must have been very true for you guys to file a fake takedown notice.
I have never heard of you guys until this, but now I have.
And if I ever end up in an area you service and build, I know to completely avoid you guys.
On top of that, for adding to the problem of corporations filing false claims, I hope you guys get fined out of the business.
Thank you and have a shitty day."
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Buzz, 11 Oct 2007 @ 10:10am

Re: Oh, I did
That was beautiful. I am tearing up at this very moment.

Honestly... It seems that no one today can take criticism. Sure, when we are kids, we are taught to "say nice things", "give constructive criticism", etc. They must carry that too far to where since no parents/teachers are around, they go tattle to some higher authority.

Honestly, if someone feels strongly enough about your horrible service to build a whole web site dedicated to it, you are obviously doing SOMETHING wrong (even if it is as simple as not clarifying to the customer how you are NOT at fault in a given situation if you really did nothing wrong).
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watcher, 11 Oct 2007 @ 10:45am

DMCA
Here's another email to them: Hi, I just wanted to thank you for bringing a false DMCA takedown notice against powermarkhomessucks.com. I had never heard of your company, but thanks to your illegal takedown notice and the subsequent buzz generated on the Internet, everyone on the planet knows. You do know about that thing called the Internet, don't you? Since you so adamantly oppose this "sucks" site, the content of said site must be fairly accurate, huh? Have a few skeletons hiding in that closet? Thankfully, I don't believe you operate anywhere in the southeast US, so I'll likely never have to see your product, but if you ever think of expanding my way, please rest assured that I will not want to look at any of your properties, and will tell all my friends and family what a sleazy outfit you are running. Lastly, because you choose to compound the epidemic of companies filing false claims like schoolyard bullies, may you be convicted for this fraudulent takedown notice, and pay whopping fines and attorney fees. I do feel sorry for the employees of your firm who have nothing to do with the utter stupidity of the managment droid who decided to issue the takedown. Hopefully these workmen will find gainful employment with a reputable builder who is not engaged in illegal activity. Have a wonderful day! www.xenu.net
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Anonymous Coward, 11 Oct 2007 @ 10:51am

Archive link
here: http://72.14.253.104/search?q=cache:PrFIXHnE-EQJ:www.powermarkhomessucks.com/+powermark+homes&hl =en&ct=clnk&cd=4&gl=us
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mojo, 11 Oct 2007 @ 11:03am

My letter!
Here's the email I sent them:
-------------------------------

Dear Powermark Homes

Today I read about your shameful and cowardly takedown of a website that was simply excercising its first amendment right to free speech.

Just because that free speech happens to paint a negative picture of your company does not entitle you, legally or morally, to silence that voice. If anything that was said of you was slanderous or libelous, you could have sued the person on those grounds... but abusing a law (the DMCA) to get a "quick and dirty" solution to the thorn in your side makes your company look far worse than any ranting and raving website every could.

By now I am sure you understand the consequences of your actions... not only can you be sued for illegal use of the law, the story of what you have done has begun to trailblaze its way across the internet, bringing news of your company's abuse to a far greater audience than the website you took down ever could have hoped to.

You have just insured that millions of people will find out how much Power Mark Homes really does suck.

Good job!
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Killer_Tofu (profile), 11 Oct 2007 @ 11:16am

Just Imagine ...
how they must feel. I am sure it was not just us three who have sent emails so far. And I doubt we will be the last.
They are probably thinking "Oh shit I wish I didn't let me lawyer do that".
Flooded with emails of people who know to never use them because of this. Such a beautiful thing.

I bet the person who set up the Sucks site is probably laughing their as- off by now.
I am assuming they know about the article here since it was their lawyer (based on knowledge gained from archived site linked in #21) who sent the news to Techdirt here. Thank you TechDirt!
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Chris, 11 Oct 2007 @ 11:51am

Google is your friend
http://209.85.165.104/search?q=cache:PrFIXHnE-EQJ:www.powermarkhomessucks.com/+Powermarkhomessucks&a mp;hl=en&ct=clnk&cd=1&gl=us
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M. Weaver, 11 Oct 2007 @ 12:41pm

Fight fire with fire
It seems to me that you can send a takedown notice to powermarkhomes.com 's ISP claiming that they are infringing on your copyright.
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Anonymous Coward, 11 Oct 2007 @ 3:33pm

This is about more than a sucks site
Powermark Homes shouldn't abuse the DMCA, but apparently this started of powermarkhomes.net where trademark law MAY be on their side. Once the site owner was forced out of the .net domain and went with sucks, Powermark homes should have taken the win and quit.

Any company of size is going to have unhappy customers. Using lawyers to silence them is nuts.
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Speaking Out, 11 Oct 2007 @ 6:32pm

Tell Lawyers How you Feel!
After seeing this blog I did a little digging and if you are interested you can get all of facts and much more about Powermark Homes and this DMCA takedown at the Consumer Policy & Policy Blog operated by the Public Citizen Org. who is apparently providing the website operator with free legal representation. This Consumer & Policy Blog has links and other court filings to read and it now seems to me that Powermark Homes is truly a shady operation and considering that their lawyers filed a DMCA Claim over a photo used by powermarkhomessucks.com used on their website when they were the ones who used it as Exhibit A in their lawsuit against the website operator. Essentially it was the lawyers ( ) who made it a matter of public record and now they want to punish the website operator for something they did. It is actions like this that gives lawyers a bad image so I guess powermarkhomessucks.com is lucky to have the Public Citizen Org. on their side. If you want to see the actual photo they the claim violates the DMCA open this PDF of the Powermark Homes Lawsuit and go to (Page 5) Evidently the PowermarkHomesSucks Site had another website before this and on that website they had used part of a photo which appears to be taken from a trade magazine and the lawyers used a screen capture of that page from the 1st website as Exhibit "A" in their lawsuit and then they had that website shutdown using the DMCA. The Sucks Site then used their Exhibit "A" on the new website and now the lawyers for Powermark Homes claim they own the copyright on the photo. RIGHT! Here the link to the photo they claim the own the copyright on: Get involved too, let the lawyers know how you feel about what they did.
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Vicky, 10 Feb 2012 @ 4:21am

Some One Reported My Blog
Hi,
I really dnt know how this stuff happened.
I am not a full time blogger and neither I am interested in earning money from blog i just lov blogging but tiday i received a DMCA complaint stating that my article on a cyberghost vpn is illegal. LOL I just wrote about their advantage & disadvantage, that's it.
moreover it's just a blogger's blog with mere 9 lakh ranking and.... ughhhhh thay found it as potential threat, really it sucks big time.
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john doe, 20 Mar 2016 @ 9:40pm

need to add company owner names
need to add company owner names, this way when they shut down the current company, you know where to find them for the next company name
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