Monster Cable Issues Yet Another Bogus DMCA Notice To A Search Engine

from the that's-not-copyright dept

Mon, Jan 10th 2011 12:04pm — Mike Masnick

Back in November, we had the ridiculous story of Monster Cable almost certainly abusing the DMCA to takedown a classifieds search engine called Jaxed. It appears that the company has done something similar yet again. The folks at Dealbert.net, a "deals" search engine that searches various deals websites (FatWallet, SlickDeals, etc.), faced a takedown when Monster Cable's chief lawyer issued a DMCA takedown notice to Verizon (the full DMCA notice is included after the jump).

There are a bunch of problems with this. First of all, Dealbert is a search engine, pulling content from other sites. If there's really infringing works on those other sites, then the liability should be on those other sites. If you look at the Perfect 10 rulings, the court noted that as a search engine, Google was not liable for what it found, and it seems that would likely apply to Dealbert as well (yes, the Perfect 10 ruling is technically only precedent in the 9th Circuit, but it's been cited elsewhere and is generally considered to be the law).

Second, nowhere does Monster Cable explain what actually infringes and what copyright is infringed. The relevant part of the DMCA notice:

Under penalty of perjury, we hereby affirm that the undersigned is authorized to act on behalf of Monster Cable Products, Inc. whose exclusive copyright rights we believe to be infringed as described herein.

We have a good faith belief that the Internet site found at the following

http://dealbert.net/?qs=beats+by+dre&btnSubmit.x=0&btnSubmit.y=0&btnSubmit=Search
http://dealbert.net/deal.php?id=3847653

infringes the rights of the Company by using Copyrights belonging to Monster Cable Products, Inc., including but not limited to: Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga.

A court would have to decide, but given that Monster Cable swore under the penalty of perjury, I would argue this sounds like perjury. It's claiming that its copyrights are being infringed, but the only things it seems to identify -- Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga -- are all trademarks, not copyrights.

Whether or not you believe that Dealbert infringed on Monster's trademarks, the DMCA does not cover trademarks. It's for copyright only. Using the DMCA for non-copyrighted content, and claiming it is copyrighted is an abuse of the DMCA and could open up Monster Cable to significant fines, should Dealbert pursue the company in court.

On top of all this, rather than approaching Dealbert directly, Monster Cable went straight to Verizon, who at least was kind enough to pass the notice along to Dealbert, rather than simply pulling down the site. Dealbert's response has been to remove the content in question, because it doesn't want to risk having Verizon simply pull down its entire website.

However, it appears this is a gross abuse of the DMCA, by a company notorious for abusing IP laws. Historically, Monster has been quite aggressive over its trademarks and occasionally patents, but here it appears to be abusing copyright law by pretending its trademarks are copyright, and that the DMCA applies to them.

From: "IPprotection" at Monster Cable
To: Abuse at Verizon
Sent: Fri, January 7, 2011 7:30:48 AM
Subject: Notice of Unauthorized Use dealbert.net

To Whom it May Concern:

We are providing you this letter of notification pursuant to the Digital Millennium Copyright Act 17 USC§512(c) to make VERIZON INTERNET SERVICES aware of material on its network or system that infringes the exclusive copyright rights of Monster Cable Products, Inc. (the "Company"). This notice is addressed to you as the agent designated by VERIZON INTERNET SERVICES to receive notifications of claimed infringement, as so reflected in the current records of the U.S. Copyright Office. Under penalty of perjury, we hereby affirm that the undersigned is authorized to act on behalf of Monster Cable Products, Inc. whose exclusive copyright rights we believe to be infringed as described herein.

We have a good faith belief that the Internet site found at the following

http://dealbert.net/?qs=beats+by+dre&btnSubmit.x=0&btnSubmit.y=0&btnSubmit=Search
http://dealbert.net/deal.php?id=3847653

infringes the rights of the Company by using Copyrights belonging to Monster Cable Products, Inc., including but not limited to: Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga.

The Company represents that it has not authorized your customer to use the Infringing Material.

Accordingly, we hereby demand that VERIZON INTERNET SERVICES immediately remove or disable access to the Infringing Material at the following URLS:

http://dealbert.net/?qs=beats+by+dre&btnSubmit.x=0&btnSubmit.y=0&btnSubmit=Search
http://dealbert.net/deal.php?id=3847653

or any other infringing URL's found within the website:

dealbert.net

As you may know, if this information is not removed after notice that complies with the DMCA, the Internet Service Provider may also be held liable for the copyright infringement Should you have questions, please contact Dave Tognotti at [phone number removed] or by replying to this email.

SINCERELY,

David Tognotti
General Counsel
Monster Cable Products, Inc.

455 Valley Drive
Brisbane, CA 94005

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

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Filed Under: copyright, dmca, takedown, trademark
Companies: dealbert, monster cable

41 Comments

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Anonymous Coward, 10 Jan 2011 @ 12:31pm

DCMA as a marketing tool: Is it breakthrough showmanship or something else?
If a legal team omitted actual IP that was infringed in the DCMA request, it should be considered frivolous, and perhaps even disciplined. I wonder what law school teaches this as an acceptable practice.
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Hephaestus (profile), 10 Jan 2011 @ 12:35pm

"[phone number removed]"

It took me all of two minutes to get his office number.
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RD, 10 Jan 2011 @ 12:39pm

Re:
"[phone number removed]"

It took me all of two minutes to get his office number."

Ok ....and? Just because it can be gotten easily doesnt mean TD wants to splash it all around.
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Anonymous Coward, 10 Jan 2011 @ 12:42pm

Umm...
"nowhere does Monster Cable explain what actually infringes and what copyright is infringed."

IANAL, but shouldn't the Bar Association discipline folks that repeatedly miss something like this?
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Anonymous Coward, 10 Jan 2011 @ 12:47pm

You would wonder perhaps if some of the images used are not copyright.
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william (profile), 10 Jan 2011 @ 12:55pm

Although I am disgusted by Monster's move (again, for the nth time), I am also disgusted at dealbert for rolling over like a dog.

Oh well...
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John D (profile), 10 Jan 2011 @ 12:57pm

Ugh
Pathetic. What's worse is that there are so many ill-informed people that they just took the stuff down. It'd be nice if someone would challenge these fools sometime. Especially lawsuit-happy whiners like Monster. I guess I wouldn't want someone getting their feet in my 8000% markup either.

The guy Tognotti is on Twitter & LinkedIn too. Looks like a major douche.
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Marcus Carab (profile), 10 Jan 2011 @ 12:57pm

Re:
They would have to state that. DMCA notices have to be quite specific. But they simply list products:

Copyrights belonging to Monster Cable Products, Inc., including but not limited to: Monster Cable, Beats by Dr. Dre, Monster Turbine, and Heartbeats by Lady Gaga.

None of those things are "copyrights" - they are trademarks. It might be a different story if they had said "original product imagery of" or something similar.

Though even then, a straightforward product shot of an item doesn't, to my knowledge, contain any copyrightable elements anyway...
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Mike Masnick (profile), 10 Jan 2011 @ 12:58pm

Re:
You would wonder perhaps if some of the images used are not copyright.

(1) Hence my pointer to Perfect 10 which explains why this is unlikely to be considered infringement

(2) If that were the case, Monster would need to, under the rules of the DMCA, explicitly state that's what was infringing. It did not. It said that it was those trademarked terms.
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Marcus Carab (profile), 10 Jan 2011 @ 1:03pm

Re:
The DMCA doesn't give them much choice. They can file a counternotice, but that comes with risks and they have to be damn sure of what they are doing - so if they don't have a whole department of lawyers ready to spring into action, it takes time. Then they risk Verizon taking down their whole site.

And when you run a business where every minute of downtime translates directly into measurable lost revenues, you just can't risk that.
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average_joe (profile), 10 Jan 2011 @ 1:04pm

If you look at the Perfect 10 rulings, the court noted that as a search engine, Google was not liable for what it found . . . .

I don't think that's what the Ninth Circuit in Perfect 10 said at all, particularly since the court did not rule on the merits. The issue on appeal was a preliminary injunction, so only the likelihood of success on the merits was discussed. In fact, the court reversed the district court's rejection of the possibility that Google could be secondarily liable for infringement of Perfect 10's full-size images. In other words, the Ninth Circuit explicitly ruled that Google could be liable for what it found, i.e., the exact opposite of what you're saying they ruled. You might want to read that case again.

From the opinion:

Accordingly, we hold that a computer system operator can be held contributorily liable if it "has actual knowledge that specific infringing material is available using its system," Napster, 239 F.3d at 1022, and can "take simple measures to prevent further damage" to copyrighted works, Netcom, 907 F. Supp. at 1375, yet continues to provide access to infringing works. There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials.
***
We cannot discount the effect of such a service on copyright owners, even though Google's assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps.

http://www.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf
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Dementia (profile), 10 Jan 2011 @ 1:07pm

Re:
And regardless, since the images are used to illustrate what is being advertised and are, in fact, representations of the items being sold, they can legally be used in this manner.
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iss, 10 Jan 2011 @ 1:07pm

That's why the term "intellectual property" should not be used. Copyright is copyright, trademark is trademark and patent is patent - these different things should not be covered by one term.
Wide use of "IP" confuses less savvy people to think that copyright, patents and trademarks are quite the same thing.
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DH's Love Child (profile), 10 Jan 2011 @ 1:13pm

Re:
Wide use of "IP" confuses less savvy people to think that copyright, patents and trademarks are quite the same thing.

apparently including Monster Cable's(tm) lawyers.
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Hephaestus (profile), 10 Jan 2011 @ 1:30pm

Re: Re:
"Ok ....and? Just because it can be gotten easily doesnt mean TD wants to splash it all around."

I know. Which is why I didn't post the number. :)
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PopeRatzo (profile), 10 Jan 2011 @ 1:42pm

Solution
Why would anyone ever buy any of Monster Cable's products?
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The Baker, 10 Jan 2011 @ 1:49pm

Loss of sales
I used to consider and occasionally buy Monster's overpriced products. Their legal tactics turned me off a few years ago, being the techie in my group I have steered others from their products. There are many great less expensive product alternatives. The monster will die on the funeral pyre of it's master.
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Will Sizemore (profile), 10 Jan 2011 @ 2:00pm

I still wonder if cases like this are not created just so lawyers can justify their existence, and their budget, to the management.

I envision a situation in which the head of a firm or a company legal department is faced with budget cuts and has his team burn the midnight oil running keyword searches on as many sites as possible, trying to find possible hits. The next scene in my head is one where that lawyer trumps everything up to a board and they collectively decide to fight a battle that the lawyer knows is a losing battle but who cares? The lawyer will get paid either way.
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Anonymous Coward, 10 Jan 2011 @ 2:03pm

Re: Solution
Technically speaking, most of their products are not only overpriced but totally overkill for the intended purpose.
9 buck audio cables from Target work just as well to connect the typical CD player to your tuner as a thirty five dollar monster.
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iamtheky (profile), 10 Jan 2011 @ 2:12pm

Hey AJ, you too could be held liable for a bunch of criteria you dont meet and that we are not going to explore.

You what deserves to be in bold? Probably the imaginary criteria that if you met, might make you liable, but we arent discussing.
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The Mighty Buzzard (profile), 10 Jan 2011 @ 2:17pm

Re: Re: Solution
Oh come on, I love their HDMI cables. Sure, since it's digital data being transfered you get the exact same quality with a $5 cable but they look so pretty and even make my penis look bigger.
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Derek, 10 Jan 2011 @ 2:39pm

I got the same notice
I received the same notice, word for word with the specifics replaced with my links back in October. They sent it straight to my server hosting company who said that I had 10 days to respond or they would pull my server. Sadly, it was also just easier for me to just pull their content.

Now i'm thinking that I should just link everyone to monoprice when they search for monster.
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John Duncan Yoyo, 10 Jan 2011 @ 2:40pm

Re: Re:
>apparently including Monster Cable's(tm) lawyers.

I think that should end in a question mark.
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Anonymous Coward, 10 Jan 2011 @ 2:42pm

Re: Re: Re: Solution
So ... monster cables enable you to stream longer and harder?
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Anonymous Coward, 10 Jan 2011 @ 3:03pm

Re: Re: Re: Re: Solution
Strange, I thought that's what celery was for...
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The Mighty Buzzard (profile), 10 Jan 2011 @ 3:06pm

Re: Re: Re: Re: Re: Solution
What, like tape a stalk along the underside?
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Dave, 10 Jan 2011 @ 3:17pm

Re:
I've had problems with false DMCAs before. Pair, who I pay to host my server, said I was the only one who has filed a challenge instead of removing the content. More importantly, they also told me to find another server since by filing a challenge they didn't want to deal with me. They said if the same company sent out another DMCA (they had sent two about the same thing a couple months apart that I challenged), they would remove my sites.

I don't have the budget to sue over the false DMCAs. Sometimes rolling over like a dog is the easiest thing to do. I don't think jaxed.com makes money. It seems like mostly a hobby site.
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freak (profile), 10 Jan 2011 @ 3:31pm

Re: Re: Re: Re: Re: Re: Solution
Yeah, it reduces transmission error.
And if you coat the inside of a stalk with PB, it really works as an awesome insulator against any background radiation.
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The Mighty Buzzard (profile), 10 Jan 2011 @ 3:45pm

Re: Re: Re: Re: Re: Re: Re: Solution
Smooth or crunchy?
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framitz (profile), 10 Jan 2011 @ 3:49pm

Re: Re: Re: Re: Solution
Nah, Monster cable is so good they can create content on the wire, on the fly, no need for anything but the cable and a TV.

Heck, it's no harder to believe than all their hype (for a normal person).
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Haywood (profile), 10 Jan 2011 @ 3:55pm

Ya'know, they are only hurting themselves
I'm to the point if it is a wire and says monster on it, I buy an alternative product. Not one dime!!!
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Mike Masnick (profile), 10 Jan 2011 @ 4:17pm

Re:
You might want to read that case again.

You're right. I should have been clearer in what I was stating, as what I said was much too general. But the court did note that, as a search engine, including such things as a thumbnail of an image, over which they have no control, as part of a larger search, is not infringing... which would almost certainly be the same situation here.

Could they be liable..? Potentially, but it seems like this site matches all of the reasons why Google/Amazon etc. were not seen as infringers.
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Anonymous Coward, 10 Jan 2011 @ 7:05pm

As much as I hate monster and dumb dmca takedowns, I dont think they perjured when they affirmed their ability to represent monster.
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Mike Masnick (profile), 10 Jan 2011 @ 8:56pm

Re:
As much as I hate monster and dumb dmca takedowns, I dont think they perjured when they affirmed their ability to represent monster.

Read the full sentence. That same sentence (i.e., the one that starts under the penalty of perjury...) includes the claims that they believe the site in question infringes on their copyrights.
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Anonymous Coward, 11 Jan 2011 @ 1:54am

The Final Solution
I always thought Monster cables would be a good test if eugenics made a come back.

Walking out of a shop after purchasing Monster cables would automatically carry a death sentence. There's probably few better tests of stupidity/gullibility and willingness to waste money and resources out there.
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Anonymous Coward, 11 Jan 2011 @ 10:58am

As much as I hate monster and dumb dmca takedowns, I dont think they perjured when they affirmed their ability to represent monster.
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Anonymous Coward, 11 Jan 2011 @ 8:47pm

Re:
Wow, it takes quite a bit of talent to double post across two days.
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amsalways (profile), 11 Jan 2011 @ 9:14pm

i think that Monster Cable has atleast tried and many people has said that Monster Cable Issued Another Bogus DMCA Notice To A Search Engine but i dont believe and agree with it at all.
love stories
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Alpha, 12 Jan 2011 @ 9:25am

Monster Cable online blacklist
Monster Cable maintains a online blacklist of so-called "counterfeit" sites including Amazon Marketplace, FatWallet, Woot Deals, dealplus... that's like half of the Internet eCommerce store! Are they retarded? No double about that dealbert.net will be added onto the list. Those clueless a*s. List here: http://www.monstercable.com/counterfeit/blacklist.html
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Joe, 12 Jan 2011 @ 10:04am

Re: Re: Re: Solution
Yes, pure hype. see Monster Cable vs. Coat Hanger(blind test)

http://consumerist.com/2008/03/do-coat-hangers-sound-as-good-monster-cables.html
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Wire Cable products, 16 Aug 2011 @ 4:53am

Cable products
I hate monster cables I feel these are not so good
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