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Toyota Demands Removal of Fan Wallpapers
An anonymous reader writes "TorrentFreak reports that Toyota's lawyers have recently contacted computer wallpaper site Desktop Nexus in a blatant example of DMCA abuse. Toyota issued a blanket request to demand the immediate removal of all member-uploaded wallpapers featuring a Toyota, Lexus, or Scion vehicle (citing copyright violation), regardless of whether Toyota legally holds the copyright to the photos or not. When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."
In a related move, Toyoda has also served a DMCA take down notice to slashdot, demanding that all car related analogies be removed from comments by slashdot members.
All you're doing is taking down free advertisements all around the world and giving yourself a bad name...
http://cars.desktopnexus.com/cat/toyota/
What I'd like someone to do is to produce a DMCA takedown order for Toyota on a piece of clothing that is worn by an actor in one of Toyota's ads.
It would be better to serve them an order to remove all ads containing clothes for copyright violation and then invoice them when they ask you to indicate which ads are violating copyright.
"Tell me doctor, with all of your defenses, are there any provisions for an attack by killer bees?"
Directly attacking the fans who are providing free advertising of your product is about as stupid as it gets.
I remember reading about similar "cases" in the past, although they were not DMCA related. Anyway, the courts threw out the plaintiffs because the items being photographed were not considered "art". Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.
Toyota could only be right if the images they specify were TAKEN BY TOYOTA. And that could be difficult to prove. If they claim ALL the images on the site belong to them and the operators of the site KNOW that some/all/most of the pictures were not taken by Toyota, then I think the whole request is bogus.
Yet another example of abuse of the legal system. If it ever makes it to court, I would hope the site operators counter-sue and win BIG. But I think that is the whole point- such cases rarely make it to court, big businesses just use the DMCA as a weapon to scare smaller entities into complying.
" When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor.""
And then he invoices Toyota for complying with each and everyone of them to the tune of the same dollar amount their bill is. Two can play this game.
Shai Schticks:"You don't make peace with friends, you make peace with enemies"
Don't remove the images!
Simply hide the cars under a big "CENSORED BY TOYOTA".
If they cannot point out the specific photos they own copyrights with, Nexus does not have to comply out of obscurity of the notice. Simple as that. Try to bring that to court Toyota!
While we're at this spread the word to all major news network and let them broadcast the clip for a few minutes in evening news (or better yet, put that in the Morning section of Headline News). Let's see who is the ultimate winner here.
I do not understand. Please use a car analogy.
Still, until Toyota says "We own the copyright on image 11684.jpg, 11689.jpg" and mentioning other image explicitly on the website, all the site owner has to say is:
"We were not served a proper DMCA take-down notice, and as such we were unable to fill the request."
The judge would look at the invoice and throw the thing out. The DMCA notice has to be done in writing, be specific, and allow for a response if the copyright is being questioned or challenged. None of this is happening, and it would be Toyota that would have egg on its face if they really tried to follow through with this tactic.
Still, as far as the free advertising is concerned, once copyright is clearly established and can be legitimately claimed by Toyota, proper notices have been filed and the law has been followed, the images have to go.
Unless.... you are claiming "fair-use" privileges for the use of the image of the vehicle.... so the whole thing starts all over again in another round of legal maneuvering. Fair-use here might actually be valid, depending on who took the image and in what context it is being used.
We see this nonsence all the time. Compagny lawyers who think they have a case completely ignoring if it will benefit or hurt their client to do so. More often than not, resorting to legal-bullying of ordinary people unwilfully brushing on your precious IP, is a terrible way to make a brand.
Every time I see the name (beginning with the letter D) of a very large maker of animated movies - the very first thing I think about, is how back in 2003 their legal vigilantes bullied a local musical into changing it's name from Rubber-Tarzan(translated) into Rubber-T. The name of the musical is the same as the title of the 1975 chilrens book that it's based on - while apparently the name Tarzan somehow became trademarked in 1999.
Legal experts say [insert name of litigous company here] would most likely loose the case - but the musical does't have the money to go to court, so they had to bend. It's impossible to imagine how [D.....] was damaged by a musical performance of a childrens book from 1975 not related to the animated movie - but their brand is irreparably damaged in the minds of countled danish parents (read prime costumers).
If you are a 500 pound gorilla, you have to be very nice to be viewed as likeable.
Run with the lemmings, and you'll get your feet wet.
It's like if a person published some photos of cars, and the car manufacturer demanded that they be removed.
But I thought about it for a few seconds, and if the onus is on the infringer to make sure that they are not infringing, then it makes sense for them to be billed.
It would if that were the case, but it isn't.
Toyota's begging for a wrongful prosecution case in this one. They really don't have a leg to stand on, saying they'd invoice for identifying their "copyrighted" works. And here's why:
* Copyright probably doesn't apply. If I take a picture of my car (an American-made Chevrolet, FWIW), then the copyright of the photograph belongs to ME. And even if copyright DOES apply (wallpaper made from images made by Toyota), the DMCA still requires Toyota to identify which images are in the wrong. "All those that contain Toyotas" would require the website to review each image -- which the DMCA excludes them from having to do, by way of requiring them to remove any so-identified image.
* Patent law -- where you really do have to work to avoid infringement! -- doesn't apply to photographs. You can describe in great detail anything protected by patent -- you just can't make/use that thing without the patent holder's permission.
* Trademark law -- which, again, DOES require you to do some legwork -- only protects against diluting uses. Fan-created walpapers incorporating Toyoyta's trademarks as a way of expressing preference for Toyoyta? At best, they can force a disclaimer on them.
(Note: this is not Legal Advice. If Toyota comes after YOU, get a lawyer to determine the specifics. You might have entered into a contract, live in a strange country, the laws might have changed, or I could be completely wrong.)
A few points:
1. The DMCA states the copyright holder has to generate the list.
2. There is no infringer. There is an alleged infringer. Forcing the alleged infringer to do the work requires a presumption of guilt.
3. In this particular case, the infringer doesn't even come into it. They are trying to bill the safe harbor.
Of course, per TFA, Toyota hasn't made this a DMCA case. They haven't really made any claims at all, just a demand that he remove any images of these vehicles.
You can ignore physics all you want, rest assured that it won't forget you.