Is it legal for a company to make more than one copyright claim on the same content? I have had a video copyright claimed by a company, which I then submitted a counterclaim for and had the video reinstated. Since then I have had numerous claims from the same company and have had to make the exact same counterclaim to reinstate the video. With the verdict having been previously reached (that the video is not a violation of copyright law) is it legal for a company to make that same claim again?
No-ish, it is not. The relevant sticking point would be in their DMCA takedown notice, where they have to follow 17 USC 512(c)(3)(A) and include in their notice (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The key here is having a "good faith belief". There is a credible scenario where a company A could file multiple notices for the actually same material B posted by the exact same person C, where the person has the right to post that material, and do so in good faith. If A was not able to locate evidence of the permission to C, then they would shift the burden of proof to C – "good faith belief" doesn't mean that they have to be right, just that they have to actually think they are. If C also uses the name D, A would not be able to determine that the work was licensed to D based on the fact (once they know that) that it is licensed to C. DMCA abuse is not an permanently open escape hatch. 17 USC 512(4) states Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. See Automattic Inc. v. Steiner, 82 F. Supp. 3d 1011. The ruling judge found that "Defendant could not have reasonably believed that the Press Release he sent to Hotham was protected under copyright". The appeal court drew on precedent and dictionary to fill in gaps w.r.t. "good faith belief", that the person should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations In this case, the abuser was flagrantly abusing the takedown system, and there is some reason to believe that in the instant case, the abuser had actual knowledge of non-infringement. Rossi v. Motion Picture Association of America provides an alternative outcome. In this case, Rossi operated a website that appeared (note the word appear) to offer free downloads of movies, and the rights-holder MCAA filed a takedown notice. In fact, it did not offer any such downloads, but MCAA's investigation stopped prematurely. This court held that "good faith belief" is subjective, so Rossi did not prevail. It is no doubt crucial that Rossi actually counted on his customers thinking that you could get actual downloads of protected material. Whether or not a DMCA abuse suit would succeed would depend very much on the factual details of why the material is not infringing, and how easily the rights-holder could know that there was no infringement.
Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence.
No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder.
If you form an LLC, and then someone later obtains a registered trademark in the same name, the registered trademark would be enforceable everywhere except in the markets and places where the LLC developed common law trademark rights prior to their registration. Your LLC formation would also put a bump in the road in their trademark application. You can, of course, do both, although it is unclear to me why you feel such urgency in the likelihood of an infringement, which suggests that there may be relevant facts that aren't revealed by your post.
Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law.
The argument would have to be either a derivative work under copyright, or a trade dress/trademark claim. Neither sounds very solid at all. Neither copyright nor trade dress/trademark protect ideas like a TV format. They can only protect very similar expressions of an idea that necessarily flow one from the other and, for example, the game mechanics can't be protected by copyright.
I am not a lawyer, and none of the following should be seen as legal advice. While it is always best to assume every image has a copyright.... In your scenario... traditionally if you are selling a product, there's generally no harm in using images of that product to assist in the sale. But even then photographer copyrights should be considered. Images of products may not only contain copyrighted material within the photo, but the photo itself is probably also copyrighted by the photographer. Just blankety taking images from other web sites is a poor practice in general and will customarily just get you into trouble. However, many manufacturers or distributors will actually provide resellers with product images. You can check the product manufacturer's web site for a "press" or "media' section. There are often downloads provided in those areas. I don't know hairdressing.. but as an example, General Motors has a special web site known to GM car dealers where the dealers can download high resolution images of the cars and products for ads, etc. I've done work in the past for a GM dealer who provided me with the web site and log in details so I can get product imagery. In addition, few manufacturers will take umbrage that you are using their images to sell their products. They want their products to look as good as possible wherever they may be displayed. In many cases, they may prefer you use supplied images rather than use your own. Customarily you would include a disclaimer in the footer somewhere: The product names, company names and product images used on this web site are for identification purposes only. All trademarks and registered trademarks are the property of their respective owners. Note, I am referring to images from the manufacturer's web site, not from competing businesses. If you are building a site for "Bob's Hair Styling" it's unethical to take images from "Kate's Hair Dressing" for your use. Stick to the manufacturer... if selling Paul Mitchell products, check the Paul Mitchell web site for available product images.
Yes, assuming the material was given the standard license. You would be creating a derivative work, and only the copyright owner has the right to authorize creation of a derivative work. See the copyright FAQ for general information. The owner can file a DMCA takedown notice with YouTube and they will by policy notify you of the infringement claim and unless you file a counter-notice (you legally couldn't given the facts you're asserting), they will take it down. The owner can also sue you.