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Countering a DMCA Takedown In the Magnet Wars
An anonymous reader writes "Zen Magnets, a maker of neodymium magnet toys, has been under assault by the much larger and better distributed Buckyballs, maker of a nearly identical toy. After Zen Magnets listed a couple of eBay auctions with a set of Buckyballs and a set of their own, asking customers to decide which was of higher quality, Buckyballs replied with a legal threat. Zen Magnets countered with an open video response, in which they presented the voicemail from Buckyballs and demonstrated their claims of quality through repeatable, factual tests, providing quantitative data to back up their assertions. Soon after, Buckyballs CEO Jake Bronstein got the video taken down from YouTube via a DMCA takedown, despite the fact that the only elements not made by Zen Magnets are the voicemail he left and some images of himself, which are low-resolution and publicly available online. Zen Magnets has decided to file a counter-takedown notice — not effective yet apparently, since the video is still marked as taken down." Slashdot's sister company ThinkGeek sells Buckyballs. No, we don't get kickbacks, but we totally should.
Update: 09/23 13:23 GMT by KD : Reader Coopjust (872796) points out one place where the disputed video has been mirrored.
Update: 09/23 13:23 GMT by KD : Reader Coopjust (872796) points out one place where the disputed video has been mirrored.
I think this is an abuse of the DMCA (some would argue that any use of it is abuse, but that's a different topic.) If they can back up their assertions with data and repeatable demonstrations, quit yer bitchin' and make a better product.
Living With a Nerd
News about an unfair DMCA takedown (don't worry, there are thousands of those) or free advertising for Zen Magnets? You decide.
Yet Another Tech Blog
(but so much more, including game and movie reviews)
http://yanteb.peasantoid.org
One of the specifically noted exception to American Trademark Fair Use is that you can use a competitor's name in an advertisement as a way of comparing your product with theirs. Since the whole point of trademarks is to inform customers about the source and quality of a product, the whole trademark infrastructure is geared toward benefiting the customer. So we want want companies to say "My brand X is better than brand Y!". Buckyballs, if Zen Magnets don't back down and this goes to court, have no case.
My postings are informational and does not constitute legal advice. Act on it at your risk.
YouTube is probably laughing right now... if anybody human actually saw it so soon.
Not the way it should be, of course... a counter-takedown notice is basically legal notice that you, the uploader, take full legal responsibility for the content, and they must IMMEDIATELY restore it – and they face full legal responsibility of any losses you incur if they do not!
(Personally I’d love to see the outcome of a lawsuit to try to recoup damages from YouTube after a counter-takedown notice was ignored. Granted they have other stuff in their TOS that pretty much makes them not liable for anything, but if they explicitly took something down because of the DMCA, shouldn’t they be liable under its terms?)
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
Here's a mirror of the video.
Zen's delay is most likely due to the fact that they're consulting a lawyer to make sure things are done by the book and they're legally in the clear (and don't damage any possibility of suing Buckyballs for committing perjury on the DMCA notice).
This is what they've last said on the matter on reddit:
the most interesting thing is that they don't actually work, because the force they exert on something is always perpendicular to the direction of motion of that something.
new sig
I have been a customer of ThinkGeek for a long while... and I hope that they really show where their values are and DROP BuckyBalls as product. I've always believed that they took more notice of this type of stuff and tried to stock items that didn't participate in this type of corporate asshattery. I hope I don't get proved wrong...
This is news. However, Buckyballs is certainly giving Zen Magnets lots of free advertising by making it newsworthy. I can only assume after watching the video that the people making their PR decisions are just that dense.
One last thing: Sometimes I wonder; "Is that someone's signature? Or do they type that at the end of each post?"
(f) Misrepresentations.— 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.
Slashdot's sister company ThinkGeek sells Buckyballs. No, we don't get kickbacks, but we totally should.
Perhaps your sister company should stop selling the products of a known DMCA abuser?
There is a war going on for your mind.
All rare earth magnets are that way. They are especially concerned about them being swallowed separately or coming apart.... The problem being if they are in different stages of your intestines, they will attract each other and either stay right where they are, blocking flow of blood or other stuff, or maybe even wear right through the walls and make holes. Pretty nasty situation either way.
I had a sucky sig.
Apparently now the makers of Ben Wa Balls ( http://en.wikipedia.org/wiki/Ben_Wa_balls/ ) have gotten wind of this fracas and have filed their own injunction
I will buy the Zen magnets instead. Screw the Buckyballs people for being such dicks.
So, where are the mirrors? Who has copies of the video?
Haven't we always thought that the Internet treats censorship as damage and routes around it? Well, where is the backup route?
Hm, maybe all this centralized infrastructure in a few big providers does have some drawbacks after all...
Assorted stuff I do sometimes: Lemuria.org
Does the DMCA offer any immunity to civil lawsuits for damages resulting from a [false/abusive] DMCA takedown notice?
Per Title 17, United States Code, section 512, the service provider (e.g. YouTube) is immune to liability for the required two-week downtime after receipt of the counter-notification (512(g)(1)). But the complaining copyright owner is not immune (Lenz v. Universal).
Big Bucks No Whammies!!
While some people argue over toys, there is a real life macro economic crisis brewing over some of the metals used in these toys..and in advanced tech useful products, the important stuff we all use. China is blocking the transfer of rare earth metals to Japan in a dispute over ocean territory and fishing rights, etc. More of a big dick contest with japan, and therefore the rest of the world, and I tell you, China will win that contest. At this minute, they are denying it is happening, but that seems to be spin. They made their point that even the threat of blocking these materials would cause severe economic harm to their competitors.
I always love when they through in language like "knowingly", because, I'm no lawyer, but isn't it pretty hard to prove that someone 'knowingly' misrepresented. If they just say, "We didn't know", how do you counter that? The only way I can think of is if you happen to get lucky and find an email or other record of a private conversation between company employees where they essentially admit it.
Also, to what extent can lawyers "shield" their clients? I.e. if a Client goes to their lawyer, and the lawyer tells them "yeah, that's infringing", even though it isn't, does the law hold the lawyer liable? I mean, if you acted on advice of your attorney, can you claim you didn't know you were making a misrepresentation (after all, your lawyer told you so, it's just your lawyer was wrong)? Is there anything to stop corrupt little deals where lawyers tell their clients what they want to hear, so that the client can act on advice of their attorney, and because the attorney doesn't face any penalties, it's all sort of 'legal'?
I think actually the *AA takes your a) and multiplies that number by about 600 then uses the result to determine damages.
I recently purchased 4 sets of BuckyBalls when they were recently on woot. I'm pretty pissed that I did now and want to show my support to Zen Magnets and buy a set of theirs. They seem to have much better quality from everything I have read and seen, and can attest to BuckyBalls "flakes" now coming off in my hand after using the magnets for about 2 weeks.
From what I have heard, this company BuckyBalls made about $500,000 in sales from the woot sale (woot actually bought more from BuckyBalls on the day of the sale because demand was so strong), and $250,000 in sales on the day Google changed its logo to honor the Buckyball. Seems they may have grown too big for their britches and feel a sense of entitlement now.
If I can not smoke in heaven, then I shall not go. -- Mark Twain
LOL, After watching the response Zen Magnets vs Buckyballs Comparison Video, Zen Magnets seems far superior to BuckyBalls.
Not because of product quality, though that seems significantly superior, but because they seem to be way more in tune with the nerd culture. Buckyballs should be ashamed of themselves for issuing a DMCA takedown notice. No geek/nerd would stoop so low.
In comparison, Zen Magnets seems to be kicking it nerdcore, which is how I roll.
ThinkGeek, you need to drop Buckyballs and pick up Zen Magnets. You gotta protect your nerd points, and getting behind a DMCA abuser, and a company which doesn't seem to understand the geek culture, is not cool. Drop Buckyballs, pick up Zen Magnets!
This is my footer. There are many like it, but this one is mine.
The problem here is that while this may seem like abuse, I think the law is on the side of Buckyballs here in terms of a potential copyright violation. Fair use is a defense against copyright infringement and while you and I may think that the content is clearly used properly under fair use provisions, that is not a proven legal fact until it has been tested in court. The counter take-down notice (demanding that the content be restored) is indeed the proper legal remedy that should have been followed here, not suing Buckyballs into the ground on this issue.
The voicemail and the images clearly are copyrighted by Buckyballs, and the DMCA notice was to take the content down. If you post something that contains copyrighted content belonging to somebody else, even if it being used under clear fair-use provisions, it can be subject to a DMCA take-down notice. If that happens to you, live with it and file the counter notice if you want it put back up... or simply live with it being gone.
Where the penalties come in is if you start to file take down notices for things you don't even own or if you keep filing a take down notice for the same content (or similar content) even after it has gone to court where it has been proven as legitimate fair use. The above post by hedwards goes into the formal legal citation for this.
...I was going to buy some of the Buckyballs product when they arrived at the local game store next to my job. After this I think i'll give my business to the Zen folks.
K
--- I was far from home, and the spell of the Eastern sea was upon me. -Lovecraft-
Hey Buckyballs...ever hear about the Streisand effect? Someone here in the office has a set of buckyballs and I thought they were pretty cool. I was thinking about picking up a set sometime. I've never heard of Zen Magnets before today. Now that I watched the video you had taken down, I'm thinking maybe Zen Magnets would be the better purchase. Thanks for helping me open my eyes to your competition.
Definitely a bad PR move.
In the interest of peer-reviewed science, I was inspired to test my coworker's Bucky Balls using the Rigid Stick Test. When we made the rigid stick, it was much straighter than the one shown in the video. Then, when we pushed it over a ledge, it stood up to 27 balls. The video showed 24 for Bucky Balls and 25 for Zen Magnets, so I would say that the test would need repetition and graphing, like they did for the ball diameters.
Still, I loved the video and I thought it was wonderful tongue-in-cheek advertising. It makes me want some Zen Magnets.
ready annnnnnnd.... STOP!
"Freedom in the USA is not the ability to do what you want. It is the ability to stop others from doing what THEY want"
$5000 and a spin!!
-- Give me ambiguity or give me something else!
I'm pretty sure I've read that buying a new refrigerator every N years pays for itself in energy efficiency, which leads me to question whether it's even a good idea to keep an appliance for 20+ years. Advances in materials, components and engineering can make appliances that use less power, water, refrigerant, etc.
We replaced a 10 year old dishwasher a few years ago and I was pretty amazed at how well it works. It has a water cleanliness sensor that monitors wash water for particulates and it has a noticably shorter wash cycle when the dishes aren't very dirty, thus saving water, electricity and natural gas (hot water input).
The voicemail was left on the mailbox of a recipient. A voicemail is a knowingly made recording, and one that has no reasonable expectation of privacy.
I'm no lawyer, but if a voicemail sender retains copyright on their message, I have no idea how a site like Audioo (which shares embarrassing voicemails with the world) hasn't been sued into oblivion yet.
As far as the images of Jake (Buckyballs CEO) used in the presentation go (which are images from Google Images, all freely available, used as a representation of a subject matter at a low resolution), I am extremely doubtful. I'm not a lawyer, and it's why Zen is consulting one.
There was no other property belonging to Buckyballs. The trademark was identified as that of a competitor, so there's no basis for a trademark infringement claim. The rest of the video was recorded entirely by Zen Magnets.
Less stress -- > Better health.
If you've accidentally swallowed one (or more) and you're worried they're still in your system, it's no big deal. Just go to a surgeon and get an MRI. He'll have them out in no time.
- RG>
Hey pal, this isn't a pleasantforest, so don't waste my time with pleasantries!
It makes you wonder a bit about a cow magnet where you deliberately feed a magnet to livestock.
This is used because many cows are so stupid that they will eat part of a barbed wire fence and other junk while grazing. Generally you don't feed the cows multiple magnets, and they stay in the rumen of the cow... a rather strange organ that is unique to cattle and other ruminants. Still, it is interesting that sometimes feeding magnets to creatures can be beneficial as well.
I bought a magnet set from zenmagnets.com in April, and I love them. They're every bit as advertised, and delivery to Europe was only a little over a week. I can't attest to the quality of the BuckyBalls product, but what I can do is compare the companies' attitudes. We've just read what the BuckyBalls execs are like. As a contrast, here's the confirmation email I got from Zen Magnets after my purchase.
HOORAY! I'm pleased to announce that your order ( #xxx ) has been processed and is now complete.
Please rest assured that we hold great urgency to each and every shipment. We promise your order will be out of our door within 24 hours of receiving this email. Unless you selected a shipping service with tracking, there will not be an additional email.
After a rigorous 4 step process of verifying the quality and consistency of each and every magnet, we donned silk gloves and placed it into a sacred padded envelope made of magic and lined with Unicorn fur, sealed the envelope with an adhesive made from strands of Gypsy hair, and wrapped the whole thing in a snazzy looking faux gold leaf paper, with elm leaf inlay from Costco. Unfortunately, by the time it gets to you, all of that fancy stuff will likely have been picked clean by the greedy postal service employees. Please don't be surprised to see just a plain padded envelope.
Now which company would you rather do business with?
CJ
Ah, arrogance and stupidity, all in the same package. How efficient of you. -- Londo Mollari