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.

Comments

bullcrap

[Pojut]

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.

Re:bullcrap

[Pojut]

I have learned to include "I think" or "in my opinion" on Slashdot, regardless of what the topic is. I'd rather respond to posts like yours instead of "stop acting like your opinion is fact."

Re:bullcrap

[hedwards]

Clearly you're not American and haven't been to America in a really long time. This is the way that corporations work. They could make a better product, but it's usually cheaper to abuse the court system or buy out the competition.

Re:bullcrap

[erroneus]

Does the DMCA offer any immunity to civil lawsuits for damages resulting from a [false/abusive] DMCA takedown notice? If not, then the answer here would seem to be simple. I think the plaintiff can prove through a preponderance of evidence that the issuer of the notice knew it had no claim of copyright over any of the material in the video. This would prove the DMCA takedown notice was wilfully abused for the purpose of censorship damaging the plaintiff's business.

They should definitely sue.

Re:bullcrap

[Sonny Yatsen]

Well, unless what you're posting is, in fact, fact, I think.

Re:bullcrap

[Maxo-Texas]

The worst problem is in areas like Appliances where the company making cheap crap ("Whirlxxxx") buys out their higher quality competition ("Mayxxx"), and then starts producing cheap crap under the "Mayxxx" name.

It has reached a point where it is impossible (as far as I can tell) to buy
a dishwasher
a hot water heater
a washing machine

That will last 20 years like they used to. The current dishwashers have electronics that are damaged by storms every 2-3 years. Some of the "money" parts are hard plastic so they wear out well before 10 years.

It's better in some cases to buy used and spend big bucks getting the item repaired. Then at least you have a solid appliance.

Please feel free to post if you've found a source for reliable (as in 20 year life span) major appliances.

Re:bullcrap

[RattFink]

The penalty is right in the notice. All proper DCMA take down request require this:

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.

A false or abusive notice can land the petitioner on the hook for perjury. The problem is getting it prosecuted and making the charges stick.

Re:bullcrap

[Teancum]

It is an interesting concept. The trick here would be to prove damages, although it is possible to file a libel tort if the assertion of copyright infringement was knowingly false. Because there was technically copyrighted material involved that was owned by Buckyballs, I don't think this assertion would work in court. Yes, the content is being reproduced under clear fair-use standards, which is precisely why the counter notice was issued. That process is spelled out very clearly in the DMCA and to me is one of the few good things in that legislation (surrounded by a whole bunch of evil text).

Basically an ISP must respond to a take-down notice, but if a protest if filed then the content must be restored and the matter goes to a court for resolution. Of course companies like YouTube may not be entirely friendly about the process and may lean a little more toward taking stuff down rather than restoring it. It may even take a lawsuit against the ISP to "educate" them about what the DMCA actually says. This can get tricky though, as restoring the content which is later proven to be infringing in court can bring penalties that may be increased due to the content being restored. It definitely is time to hire an attorney if this kind of chest thumping starts to happen and you care about whatever it is that is getting yanked around on the net.

Re:bullcrap

[Jawnn]

"The Wal-Mart Effect" is the name for what you describe. See here and here for a wonderfully informative story on how it works.

Re:bullcrap

[commodore64_love]

In my opinion it's not "abuse" unless youtube refuses to restore the video.

You see under DMCA law, youtube has no choice. If they receive a request they MUST take down the material. Youtube is not supposed to make judgment calls on the validity of the request. Step 2 is to submit the anti-takedown request which youtube must also obey and restore the material (or else fce a lawsuit). Step 3 is for the offended company to either take it to court.

Re:bullcrap

[Thansal]

It isn't youtube people are calling abuse on, it's the company issuing the DMCA take down...

Re:bullcrap

[value_added]

Please feel free to post if you've found a source for reliable (as in 20 year life span) major appliances.

How's "Miele" for a start?

Most anything they sell will give you a good 20 years of service, and if not, the construction and quality of materials is such that a rebuild (motor, etc.) is worth the money and trouble. I've heard Steve Jobs opted for Miele washing machines and dryers. Could have been an aesthetic choice, but folks buying a BMW or a Porsche may be doing the same.

If a stove is what you want, then try something from a manufacturer like Wolf. There's no reason a good quality stove shouldn't last you 50 years or more.

All in all, it depends on how much money you want to spend. And how willing you are to shop somewhere other than the local mall. We live in a Walmart world where convenience and price reign supreme for most people, so any meaningful discussion of quality is typically among the "select few". Put another way, I have to make a special trip to buy my vacuum cleaner bags. ;-)

Re:bullcrap

[grub]

I was a vegetarian for about 10 years (ending over 15 ago) for no particular reason.

But bacon... oh bacon... It would call to me in my dreams. Sizzling bacon strips with arms and legs and breasts moaning seductively "Eat me, grub!"

Then the dream that ended it all. I was tied to a slab of salt pork while a giant bacon strip wearing a pig mask and sporting a large bacon penis assaulted me.

So when friends today ask why I quit being a vegetarian I don't tell them about the anal and oral rape. I just shrug my shoulders sheepishly.

MMmm... bacon.

Re:bullcrap

[saider]

The problem with the Wal-Mart philosophy is that up-front cost becomes the only measure of "value". Things like longevity and quality are not considered.

Re:bullcrap

[kilfarsnar]

People want cheap cheap cheap, so the design choices you mentioned were made to reach a price point.

Indeed they do. I have had multi-millionaires rave to me about how cheap Wallmart is. I don't fully get it. I understand wanting to pay less for something. But at some point that low price comes at the cost of quality or features. That seems like a bad trade to me, but many people don't seem to consider it. Maybe they think that if their widget breaks, it's ok because it's cheap to replace. That still seems short-sighted to me.

Re:bullcrap

[bluefoxlucid]

I buy Land's End Business Outfitters clothing. After 2 years i lost some socks to laundry room theft, so bought some new ones. The new socks are ... a shade whiter than the old ones. The 2 year old ones that I do still have are otherwise indistinguishable. They also cost $20 for 3 pair ($6.66/pair)

I used to buy Wal-Mart clothing. Socks come $8 for 8 pair I think ($1/pair). The socks are not as nice to begin with. After about a month (maybe 4 washes), they have little lint balls hanging off and are flattened out like paper, and fraying. In less than a year they have holes. Realistically I could justify replacing them each month or at most 2 months, so maybe $8 x 6 = $48/year versus $40 for 6 pair that last me ... probably 3, 4 years? I haven't actually found out yet. And those expensive socks are a hell of a lot nicer. We're talking nicer things for $10-$15/year.

It's the same with the shirts. I bought undershirts that are nice and fluffy... over two years ago, $20 for a 3 pack. They're good as new, but a little yellowed due to my horrible water (they're UNDER my shirt and feel nice), no fraying at all. I have shirts I bought 2 years ago from Land's End; one frayed around the edges, the other 5 are almost brand new. The pants... one has frayed because I kick my shoes off and catch the cuff under my sole; the others I haven't damaged and they need to be ironed. The shirts cost me $25 (wal-mart shirts are $15-$18) and pants cost me $30 (Wal-Mart pants cost me $18-$25, list price on Land's End pants is $40 but Sears has sales).

The stuff I get from Wal-Mart lasts me about 2-3 months before showing holes, frayed/lost threads (bands around pants legs where thread has unraveled!), or complete loss of volume (socks, undershirts become paper-like). I pay 1.5 times as much and get something that lasts 2-3 years at least without fading or fraying, and it looks and feels better because it's dyed with better dyes and woven better (some of my cotton shirts have a smooth sheen and feel like silk!) and made of brushed Peruvian cotton. I'm sorry but yes, more expensive stuff just costs less; these people are indeed short-sighted morons.

Re:bullcrap

[HungryHobo]

That will last 20 years like they used to

There's a selection bias here.
There is cheap crap now which breaks right away.
There has always been cheap crap that breaks right away.

But you remember the lightbulb which lasted 10 years, not the other 20 that came with it and all burned out in the first few years.
You remember the phone which lasted 10 years, not the one which you had to take back after a week with a flaky screen.

People assume that they built things better in the old days because the items from that era have lasted so well.
Ignoring that the items that didn't last aren't here to be evaluated.

In 20 years there will still be people talking about the washing machine they bought back in 2010 which lasted 20 years and why can't they build like that nowdays.

though I'll agree with you that whirlpool as a brand is terrible.

Re:bullcrap

[dcavanaugh]

We have few options to buy long-lasting products because nobody wants to pay a premium for higher quality. There is a good reason for this. Factory production is a process that can be automated from end to end with most of the labor coming from low-cost offshore workers.

Repair is a different matter. It takes more labor to fix an appliance than it does to make one. The repair tech has a higher skill level than most of the factory workers, and this labor cannot be sent offshore. The cost of parts is much higher as well. Somebody has to operate a warehouse full of replacement parts for machines made over many years. Some of those parts will sit on the shelf for years, some will never be sold. Therefore, the markup on parts has to subsidize the slow-selling and non-selling parts.

If someone could make a durable appliance that NEVER had to be fixed, it would be worth the premium. But as soon as service is required, we all know that a service call is dangerously close to the cost of a cheapie replacement appliance. Consumers generally demand features (like computerized controls) that increase the chance of failure at some point -- regardless of how well-made the rest of the machine is.

Kirby vacuum cleaners are awesome machines. But if you buy a plastic Hoover every 3 years, it will probably cost less (even if you buy 7 of them over 21 years). Your carpet will still be clean, and your risk at any given point is limited to the cost of a Walmart plastic vacuum cleaner. The Kirby will cost more to fix than the Hoover will cost to buy.

Some people buy exotic cars with the full understanding that the annual cost of repairs will be dangerously close to the payments on a brand new Toyota. But if you love the car, you accept the tradeoff. This happens far less often with appliances because it's hard to love a refrigerator all that much.

Re:bullcrap

[blackraven14250]

"The vice president's office was furnished with a folding lawn chair and a chaise lounge." i.e. Cutting costs. Saving money.

Yet the owners with the highest number of shares, the Waltons (all 4 of them), each walk away with billions per year, while the people working there live just below the poverty line.

Re:bullcrap

[saider]

I have a VCR that still works (it was bought in 1993 when I was in college). I also still have my original Sony CD player bought in 1988 (not the size of a small TV) and it is still plays CDs from time to time. My Panasonic receiver and amp I bought in 1995 are still driving my 30 year old speakers. My appliances (washer, dryer, fridge, dishwasher) are all older than my 10 year old son, with only minor repairs here and there.

Granted, I don't use the CD player much because I have my computer hooked up to the stereo now. But why should I have to repurchase something just because some marketing droid figured that everyone will want to toss ProductX in 3 years. Most components of playing music (amp, speakers, etc) haven't changed much. Mowing the lawn and doing laundry have not changed much in 30+ years. Why should I buy a cheap machine, when I can pay twice as much and get a machine that lasts much, much longer? Appliances never break on Saturday morning right before you were heading off to Home Depot. They go out on Sunday night on the week that you need to work overtime in order to get the Super-Important project done on time.

I vote with my wallet for quality all the time. That is why I do not shop at Wal-mart. I have found that even the quality brands will have cheap-ass Walmart-only models that are far inferior to the other models that they sell. The problem is that people do not do their research and buy these inferior models and send the message to the retailers that "I like crap". This causes other retailers to do the same in order to compete. This makes the quality models much harder to find, and more importantly, the retailers never get the message because they are plenty busy selling crap to people who don't care.

Re:bullcrap

[SpeZek]

their appliances tend to be bloody heavy

I've found that judging a lot of different things by weight gives you a good indication of the quality of that product.

Heavier furniture? They didn't use cheap wood. Heavy fridge? It's metal, not plastic. Heavy powersupply? It has quality caps and sinks. Heavy metal...

Re:bullcrap

[mcgrew]

Often you're not paying for anything but a name; I could have spent $150 on a pair of Nike shoes, but I bought a pair at WalMart for $5 several years ago; they're only now to the point of needing replacement. I'd be willing to bet that if I'd bought Nike they'd be shot, too.

I pick up Nike tshirts at garage sales for seventy five cents. It's stupid to pay extra for "quality" in an item you don't plan on keeping long, and IMO it's doubly stupid to pay extra for a name.

Aleive costs three times what the same strength generic naproxin sodium costs, but the product is identical. The extra cost buys you nothing.

Re:bullcrap

[ultranova]

Yet the owners with the highest number of shares, the Waltons (all 4 of them), each walk away with billions per year, while the people working there live just below the poverty line.

Well, that is the whole point of Capitalism: it's Feudalism 2.0, with some of the dogma changed to a new wording - for example, rather than talking about the Divine Right of Kings, they talk about Property Rights, and rather than talking about God, they talk about the Invisible Hand of the Market. But it all works out to the same: the nobility benefits at the expense of everyone else.

The Question

[Ltap]

News about an unfair DMCA takedown (don't worry, there are thousands of those) or free advertising for Zen Magnets? You decide.

Fair Use

[Sonny Yatsen]

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.

Other users have now mirrored it

[Anonymous Coward]

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:

Edit: Decision is we're going to do a counter-notification, but we're gonna have a lawyer back us up. (Especially since there have been good points about potential $$$ damages for perjuring a false copyright take-down.)

Re:Fucking Magnets,

[chichilalescu]

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.

thinkgeek

[MickyTheIdiot]

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...

Re:thinkgeek

[mandark1967]

Their values? Seriously?

I purchased two golf-type shirts from them. Both are a bit oversized as I like loose-fitting shirts

The first one ripped on its own under both arms due to the stitching not being properly done.

The other? It unbuttons itself. While that may be a useful feature, if my name is Kandi and I'm dancing at "The Gold Club", it's not so useful if I am in a meeting at work.

Re:ThinkGeek

[martas]

again, thinkgeek's general email address is webmonster@thinkgeek.com . make your opinion heard.

news.

[postermmxvicom]

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.

Re:Can Zen Magnets sue?

[hedwards]

Yeah, there are penalties. Out of 512. Limitations on liability relating to material online

(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.

ThinkGeek

[Jaysyn]

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?

Re:Hello Poison Control Hotline?

[irving47]

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.

It has gotten even uglier . . .

[pariahdecss]

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

Service provider is immune; complainer is not

[tepples]

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).

Re:"the Internet routes around..." well, does it?

[Coopjust]

It's been mirrored by other people on Youtube.

Knowingly?

[JSBiff]

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'?

Speaking from a Recent BuckyBalls Customer

[kipin]

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.

After watching the response...

[definate]

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!

Streisand effect

[LordKronos]

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.

Repeatability of Science

[Myopic]

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.

Re:Can Zen Magnets sue?

[Coopjust]

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.