Fwd: [DynDNS #1505510] Copyright Violation

Saving entire thread in customer service account for posterity.

Forwarded conversation
Subject: [DynDNS #1505510] Copyright Violation
------------------------

From: *Brianna Brothers via RT* <abuse-yJRlmlznMY/[email protected]>
Date: Wed, Jun 8, 2011 at 3:06 PM
To: [email protected]


Dear DynDNS.com Customer,



We have recently received a report that you are hosting copyright material
on your site without permission of the copyright holder.



Specifically, the following:



- http://www.mail-archive.com/[email protected]/msg18590.html







Please  remove this material immediately and inform us that you have done
so.  Failure to do so will be considered a violation of US law and the
DynDNS.com Acceptable Use Policy to which you agreed:

http://www.dyndns.com/about/legal/aup.html



***NOTE!***

If we do not hear back from you that you have complied within the next 24
hours, we will be forced to take further action against your DynDNS.com
account which may include immediate termination of your DynDNS.com account
and all associated services.



We look forward to hearing from you in the next 24 hours.



Regards,



Dynamic Network Services Inc.





--
Brianna Brothers

DynDNS Ninja Squad

http://dyn.com

http://twitter.com/dyndns


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From: *Jeff Breidenbach* <[email protected]>
Date: Wed, Jun 8, 2011 at 3:20 PM
To: Mail Archive Support <[email protected]>



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From: *Mail Archive Support* <[email protected]>
Date: Wed, Jun 8, 2011 at 5:14 PM
To: Jeff Breidenbach <[email protected]>


I have removed the message from the archive so please respond to
DynDNS from your [email protected] account asap to let them know it's been
handled.

I would consider including a line about recommending they ask the
original complainer to file a proper DMCA takedown notice, but I doubt
we'll change DynDNS' policy.
--
Support
The Mail Archive
www.mail-archive.com

----------
From: *Jeff Breidenbach* <[email protected]>
Date: Wed, Jun 8, 2011 at 7:42 PM
To: abuse-yJRlmlznMY/[email protected], Mail Archive Support <[email protected]>


Dear Brianna Brothers,

I would like to speak with your manager.

Our website, The Mail Archive is an archival repository for thousands
of public mailing lists. Our customers are list administrators, and by
policy they may exercise editorial control, but we do not - unless
required by applicable law. This is very important as it touches on a
number of issues including free speech and censorship.

The Mail Archive is based in the United States and to the best of my
knowledge the applicable law is section 512 of the Digital Millenium
Copyright Act. If DynDNS is representing the copyright holder, DynDNS
can file a DMCA takedown notice to either our support email address on
CC, or in hardcopy to our registered DMCA agent.  I frankly don't
understand why DynDNS is involved, especially since The Mail Archive
is so easy to contact directly. But if your company chooses to
represent and send a takedown notice on behalf of a copyright holder,
do it right.

http://www.chillingeffects.org/dmca512/faq.cgi#QID130
http://www.mail-archive.com/faq.html#dmca

Next, now let's get to the acceptable use policy. As I've stated, The
Mail Archive is committed to complying with all applicable law. If
that is not enough, and DynDNS is requesting editorial control over
the contents of The Mail Archive, this is not acceptable. Please
clarify.

We have temporarily taken the Indonesian language message offline due
to DynDNS's threat of imminent termination of service, which would be
devastatingly disruptive. However this matter is not resolved. Please
put me in contact with your manager.

Thank you.

Jeff Breidenbach
The Mail Archive
575 578 4284

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From: *Alan Ellis via RT* <abuse-yJRlmlznMY/[email protected]>
Date: Thu, Jun 9, 2011 at 6:45 AM
To: [email protected]


It has nothing to do with free speech or censorship, it has to deal with
copyright violations.
No, we do not need to file a DMCA complaint with you -- you agreed to
not host copyrighted material when you agreed to our AUP and TOS. You
agreed that we may terminate you for any reason, including copyright
violations.  We received a DMCA complaint about your site and we acted
on it, just as we are legally obligated to do.  You may contact a lawyer
to take action against the person who filed the complaint but we did
what is required by us according to the law.
We do not want any editorial control.  We simply do not want you using
our services to host copyrighted material, which violates our AUP and
TOS.  Legally when we receive a DMCA complaint, by law we must take
action and the complaint is legally enough to be considered proof.
We do consider the matter resolved since the material is down.  If it is
brought back up and we receive additional complaints, we will need to
take action.  Hosting copyrighted material can not be tolerated.  If you
feel our AUP or TOS is unjust, you will need to find a different provider.

Thank you for your understanding in this matter.

--
Alan Ellis
Dyn Inc. Concierge
*We're hiring and need your help! Refer a friend to [email protected] and if we
hire
them, you get $100 on DynDNS.com: www.dyn.com/careers

----------
From: *Jeff Breidenbach* <[email protected]>
Date: Thu, Jun 9, 2011 at 10:02 PM
To: abuse-yJRlmlznMY/[email protected]


Dear Alan Ellis,

Thank you for your response, I now understand where DynDNS is coming from.

The material in question is on The Mail Archive's network. That makes
The Mail Archive the service provider and any DMCA takedown messages
should be going to us. The sensible thing is for DynDNS to either pass
the takedown notice to us, or put the complainer in direct contact
with us. Then we of course follow the law. That includes checking to
see if the notice is valid (is there a name, address and electronic
signature of the complainer? a statement that the complaining party is
authorized to act on behalf of the owner? etc.) If so, we take down
the material. And we inform the poster in case they choose to file a
counter notice.

I bring up issues of free speech and censorship, not because I think
DynDNS is trying to do anything underhanded, but because we've had
multiple instances over the last decade where people demanded removal
of material they disagree with. We take archival services seriously,
that's why our policy is to follow applicable law as carefully as we
can, and for that we need any takedown notices directly.

I suspect we're mostly in agreement. Presumably DynDNS doesn't have
the goal of (effectively) masking a takedown notice from us. I suspect
that DynDNS does not consider itself the service provider for third
party material archived on mail-archive.com, simply due to being the
registrar and DNS resolver for the domain. When we first started as a
customer of DynDNS many years ago, I had the pleasure of interacting
with Jim Wilde. Is he still with the company? My impression is he
understands these distinctions very well, and I can't imagine him
having an objection with The Mail Archive's policies as I've just
described.

Is there anything we can do to convince DynDNS that the correct action
is to pass on legal notices, starting with this one? For example,
would it be helpful to have a short discussion with an EFF
representative on the topic?

Sincerely,

----------
From: *Jeff Breidenbach* <[email protected]>
Date: Thu, Jun 9, 2011 at 10:58 PM
To: [email protected]


Well, I now know what it feels to be on the other side of the customer
service counter.

--Jeff

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From: *Chris Gonyea via RT* <abuse-yJRlmlznMY/[email protected]>
Date: Fri, Jun 10, 2011 at 6:38 AM
To: [email protected]


Hello Jeff,

My manager isn't in the office for the next week or so, so I can't
definitively say one way or another what we can do on our end regarding
future complaints. Do you mind if we bring this to his attention when he
returns? Given the legal ramifications, I don't want to promise
something we can't deliver on.

Obviously you are a long time customer, so maybe we can work out some
level of understanding regarding this once he returns.

Regards,

--
Chris Gonyea
Dyn Inc. Concierge, DNS Team Lead
http://dyn.com
http://twitter.com/dyninc

Amsterdam and Vegas weren't enough. Santa Clara, Denver, NYC and Singapore
await. Here's where we're heading and where we can meet up next:
http://dyn.com/why-dyn/where-well-be

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From: *Jeff Breidenbach* <[email protected]>
Date: Fri, Jun 10, 2011 at 7:42 AM
To: abuse-yJRlmlznMY/[email protected]


Dear Chris Gonyea,

That sounds like a very good idea, thank you. In the meantime, we do
need to see the current takedown notice to justify keeping the
material offline.

----------
From: *Chris Gonyea via RT* <abuse-yJRlmlznMY/[email protected]>
Date: Fri, Jun 10, 2011 at 10:38 AM
To: [email protected]


The takedown notice is below:



InnerBody.com
1825 E. Northern Ave.
Suite 175
Phoenix, AZ 85020
June 7, 2011

Dear Sir or Madam:

I am from InnerBody.com, which is also the legal owner of the copyright in
the material published on the Website.

It has come to our recent attention that your publishing client’s website
has original articles produced expressly for the InnerBody.com website, and
as such our copyrighted property.

1. The following are the URLs for our articles (the "work") that have been
copied on your client’s site(s):

- http://www.innerbody.com/image/endoov.html
*
*

Copyright of the above material has been infringed upon at the following
URL(s) of the offending site (excepting your contributor’s original
introduction):
*
2. Permission was neither asked nor granted to reproduce our Work and your
Work therefore constitutes infringement of our rights. In terms of the
Copyright Statutes, we are entitled to an injunction against your continued
infringement, as well as to recover damages from you for the loss we have
suffered as a result of your infringing conduct.

3. Under these circumstances I demand that you immediately:

3.1 remove all aforesaid infringing material from your Website(s), and
notify me in writing that you have done so;

3.2 remove any additional infringing material in the form of InnerBody.com
articles not listed in this complaint;

3.3 undertake in writing to desist from using any of my copyrighted work in
future without prior written authority from me.

4. I have a good faith belief that use of the copyrighted materials
described above as allegedly infringing is not authorized by the copyright
owner, its agent, or the law.

5. I swear, under penalty of perjury, that the information in the
notification is accurate and that I am the copyright owner or am authorized
to act on behalf of the owner of an exclusive right that is allegedly
infringed.

This is written without prejudice to our rights, all of which are hereby
fully and expressly reserved.

Sincerely,


KALA T. BASACA
INNERBODY.COM <http://howtodothings.com/>



--

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From: *Jeff Breidenbach* <[email protected]>
Date: Fri, Jun 10, 2011 at 7:31 PM
To: Mail Archive Support <[email protected]>


Successful conclusion.

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From: *The Mail Archive* <[email protected]>
Date: Fri, Jun 10, 2011 at 7:48 PM
To: Jeff Breidenbach <[email protected]>


Very nicely done.  I'll send the counter notice mail (not that we've ever
received a response on one).