Roca Labs Issues Bogus DMCA Takedown Notices To Google To Try To Hide PissedConsumer Reviews

from the keep-digging dept

Wed, Nov 12th 2014 2:35pm — Mike Masnick

Yes, we're back again with another Roca Labs story already. Lawyer Ron Coleman alerts us to the latest ridiculous legal strategy by Roca Labs: send a DMCA notice to Google to try to hide the negative reviews of Roca Labs on PissedConsumer.com. As you know, Roca Labs is suing PissedConsumer because it hosts some negative reviews of Roca's product (a claimed "alternative" to gastric bypass surgery). The DMCA notice in question claims that thumbnails used on the PissedConsumer reviews violate its copyright, and further, that PissedConsumer violates Roca Labs trademarks by using Roca Labs in the URL for the Roca Labs reviews.

The thumbnail image of Roca Labs copyrighted website that can be seen at the URL below. This thumbnail also contains the image of Roca Lab's product that was photographed by Roca Labs and all copyrights are owned by Roca Labs (original studio image is not online). Furthermore, PissedConsumer.com directly uses the name Roca Labs which is a Registered trademarked property (US Registration No. 4145897). To be more specific, pissedconsumer.com uses our company name in the URL and pages.

Like many of the legal arguments from Roca Labs, these seem to be almost entirely bogus.

First, thumbnail images in this manner are almost certainly fair use -- something Google knows darn well, since it was the key defendant in the case (Perfect 10 v. Google) that established this point. Even outside of that authority, a basic four factors analysis would easily show that using thumbnails for reviews is fair use.

Second, the DMCA is not to be used for trademark claims, as the DMCA does not cover trademark.

Third, even if it did, the URLs are clearly not infringing, as a huge number of rulings concerning "gripe sites" that use the name of the company they're criticizing in their URL have found. When such sites are clearly not the originating company and there's no likelihood of confusion, such URLs are nearly always found to be non-infringing.

Either way, this seems to fit Roca's pattern of doing anything it can possibly do to try to suppress criticism of its product. It really makes you wonder why the company is so worried about letting customers give an opinion about their product, doesn't it?

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Filed Under: copyright, dmca, fair use, thumbnails, trademark
Companies: google, pissedconsumer, roca labs

35 Comments

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GMacGuffin (profile), 12 Nov 2014 @ 2:28pm

Dilettantes.
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DannyB (profile), 12 Nov 2014 @ 2:44pm

Fits Roca's pattern?
Is Roca stepping over the line of improperly trying to increase litigation costs by filing such claims? Would that violate some court rules?

Could Roca get that penalty of perjury thing for misuse of the DMCA?
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S. T. Stone (profile), 12 Nov 2014 @ 2:49pm

One of these days, the lawyers for Roca Labs are going to do something really dumb.
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Anonymous Coward, 12 Nov 2014 @ 2:52pm

I'm so thankful we have Roca Labs to fill the void left after the Kleargear and John Steele sagas were over.
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Anonymous Coward, 12 Nov 2014 @ 3:15pm

Snake oil scam
I have now read numerous stories about how Roca labs has attempted to quash complaints, that their name is now permanently implanted in my brain as a ripoff scam. This is totally involuntary, only by repetition of bullshit legal actions that get rebuffed every time. Thanks Roca, NOT.
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Mason Wheeler (profile), 12 Nov 2014 @ 3:16pm

Re: Fits Roca's pattern?
No. The courts have already let the bad guys get away with it, setting a very narrow, very bad precedent that the "penalty of perjury" bit only applies to one thing: that the person issuing the DMCA notice is authorized to issue DMCA notices on behalf of the rightsholder in question. It specifically does not create liability for bogus, fraudulent, or malicious takedowns.
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Anonymous Coward, 12 Nov 2014 @ 3:23pm

Patmont Motors v. Gateway Marine found that use of a trademark in the non-domain part of a URL does not infringe.
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Anonymous Coward, 12 Nov 2014 @ 3:25pm

"Roca Labs Issues Bogus DMCA Takedown Notices To Google To Try To Hide PissedConsumer Reviews"

Geez, these guys just won't quit.
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Kronomex, 12 Nov 2014 @ 3:28pm

Go away for just over week, come back and find the cretins at Roca Labs (and I use the word very loosely)are still at it. It is to laugh.
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Anonymous Coward, 12 Nov 2014 @ 3:34pm

Re:
I think it's much too late for that
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Anonymous Coward, 12 Nov 2014 @ 3:36pm

Re:
It's almost like Mike and perhaps other media outlets conspired to hire Roca to go do stupid things so they can report about it and get viewer attention.
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Anonymous Coward, 12 Nov 2014 @ 4:03pm

And here I was worried that the popcorn industry was going to go into a recession, just depending on the box office for it's main income. Prenda has dried up as far as hearing much about it; which left me in dire need for entertainment.

Then we came into continued attractions with Kleargear, Charles Carreon, and now we have our latest star villain, Roca Labs.

If you find yourself in a hole, the first thing to do is stop digging. ~ Will Rogers

Some folks never learn and for them I give one more Will Rogers quote that seems to fit.

There are three kinds of men: The ones that learns by reading. The few who learn by observation. The rest of them have to pee on the electric fence for themselves. ~ Will Rogers
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That One Guy (profile), 12 Nov 2014 @ 4:08pm

Re: Re:
No need, there will always be people who just cannot restrain themselves, and whose particular brands of lunacy make for entertaining stories/articles.
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Anonymous Coward, 12 Nov 2014 @ 4:09pm

Bogus DMCA?
So? Google takes those down too.
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Anonymous Coward, 12 Nov 2014 @ 4:17pm

Is it possible...
...that Roca Labs is clueless? And that all of this legal posturing is merely a cynical attempt to exploit their naivete' to generate as many billable hours as possible?

Because that's what it looks like. It looks like some attorneys who smelled easy money and have convinced Roca to go on a scorched-earth campaign against everyone over everything, knowing that the more legal entanglements Roca gets into, the bigger the legal bill is going to be. And it doesn't matter if they win or not -- Roca's lawyers will still get paid.
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Mason Wheeler (profile), 12 Nov 2014 @ 4:33pm

Seen on Techdirt's advertising
http://imgur.com/xRFJaCT

Hooray for irony!
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Anonymous Coward, 12 Nov 2014 @ 4:37pm

Mike Masnick just hates copyright law.
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Anonymous Coward, 12 Nov 2014 @ 5:18pm

Re: Is it possible...
Ya know? You may not be that far off. Lawyers, as a general rule, have a pretty bad reputation (yes, I know, there are some sterling exceptions, like Marc Randazza) and it wouldn't surprise me in the least that this is their main objective. Finding idiot clients, like Roca, is like unto finding a great Class-action client, instant and sustained money.
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Adam Steinbaugh (profile), 12 Nov 2014 @ 6:20pm

Re: Is it possible...
Doubtful. I've exchanged a number of emails with their principal, who indicated that he knew that the motion for a preliminary injunction (against PissedConsumer) was a long shot, but felt it was necessary to try to force some type of policy change with respect to the CDA. That was my takeaway from the exchange, anyway. So I think they get that their cases may be long-shots, but think they have SOME chance of success, however remote.

Or they're just making some kind of stand which is unlikely to convince anyone anywhere that the CDA should be changed.
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That Anonymous Coward (profile), 12 Nov 2014 @ 7:03pm

Re: Re: Is it possible...
So falls under the heading... 'Only doing what the client wanted'
They offer a couple things to dissuade him to cover their behinds, then go full on, whatever word I can use without insulting all sorts of people, while making sure the checks are clearing.
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That One Guy (profile), 12 Nov 2014 @ 7:03pm

Re: Re: Is it possible...
Wikipedia seems to be failing me at the moment, what's the CDA, and what exactly do you think they're trying to have changed in it with their long-shot lawsuit?
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Anonymous Coward, 12 Nov 2014 @ 7:39pm

Re: Re: Re: Is it possible...
Wikipedia seems to be failing me at the moment, what's the CDA...?

Wikipedia: Communications Decency Act.

As I'm not the commenter to whom you're replying, you're on your own for the rest of your question.
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That One Guy (profile), 12 Nov 2014 @ 7:59pm

Re: Re: Re: Re: Is it possible...
Thanks. And now I imagine I have a pretty good idea of what part they're trying to change...

'Effectively, this section immunizes both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content.'

Yeah, I imagine they would love to have that little bit struck from the law.
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Peter, 12 Nov 2014 @ 8:14pm

I am a little worried. I will be out of town this weekend with limited access to the internet. At the rate Roca Labs is going, I may have to take Monday off just to catch up on their shenanigans.
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New Mexico Mark, 12 Nov 2014 @ 8:22pm

Re: Snake oil scam
If Tesla bought Roca, kept the Roca name, and started giving away their top cars under that name, I wouldn't take one. That's how much negative association I have with the Roca name.
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tqk (profile), 12 Nov 2014 @ 8:28pm

Re: Snake oil scam
This is totally involuntary, only by repetition of bullshit legal actions that get rebuffed every time.

Jeebus. Can't any of you intartubes freaks do ANY research for yourselves?!?!!!11 Fneh:

https://rocalabs.com/roca-labs-reviews :

"About 185,000 results on YouTube".

We haven't slept for weeks (WEEKS!) trying to keep up with the demand for our revolutionary product (*Results may vary.).
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tqk (profile), 12 Nov 2014 @ 8:35pm

Re: Re:
It's almost like Mike and perhaps other media outlets conspired to hire Roca to go do stupid things so they can report about it and get viewer attention.

You stole that from me! I said pretty much exactly the same thing just this afternoon about something else, and accused Comedy Central for being behind it, but whatever, I'll SEE YOU IN COURT!!!?!1?1111
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Anonymous Coward, 12 Nov 2014 @ 10:47pm

Re: Re: Is it possible...
Did Marc put you up to this?

Be careful or Roca will add you to the lawsuit!
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Anonymous Coward, 12 Nov 2014 @ 10:49pm

Re:
Mike Masnick just hates abuse of copyright law.

FTFY
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Anonymous Coward, 13 Nov 2014 @ 4:19am

Re:
So you eat paste?
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Michael, 13 Nov 2014 @ 6:02am

Re: Re: Snake oil scam
Although, the Roca-Roadster does have a nice ring to it.
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Michael, 13 Nov 2014 @ 6:04am

Re: Re: Re: Is it possible...
No, they are clearly just going to sue Marc for that comment that he did not write and has nothing to do with.
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Michael, 13 Nov 2014 @ 6:05am

Re:
Don't worry, they are going to do a number of really dumb things, but they will accomplish nothing.
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Whey Standard (profile), 13 Nov 2014 @ 11:11am

Re: Re: Snake oil scam
I have so much negative association with the name Roca Labs, when I saw my Valium was made by Roche Labs, I instinctively dumped the bottle down the drain and beat up my neighbor. I intend to sue Roca over this incident.
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Anonymous Coward, 13 Nov 2014 @ 12:52pm

I'm not quite sure what the whole flap is about with Roca. They are doing nothing more than the time-honored selling of snake-oil treatments to a very gullible public. The, admittedly way over the top tactics they're using fall right in line with their predecessors, who would be proud. These tactics are designed to maximize revenue intake before the FDA or the CDC or some other Government agency shuts them down for endangering the public. Popcorn anyone??
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