This DMCA thing is a law I absolutely hate. It turns the American concept of innocent until proven guilty on its head. This has made it a prime candidate for abuse and caters to large corporate interests and extortion.
We have a number of people covering the DCMA Notice given to WordPress to take down photos in a users blog, Mademoisl-Eve.com. You may be wondering why this is a big deal. I mean someone got a DMCA notice and took stuff down. So?
The kicker is a HOSTING company (WordPress) got the notice and did the take down. This is kind of a big deal. In general hosting companies and ISP’s are immune to DMCA take down notices regarding customer content. So, it is possible to be accused and penalized without ever knowing it is coming.
We are also hearing that this is a CASE TO WATCH… I don’t think so. This isn’t going to court. So, no precedence is going to be set. Both sides have said they are going no farther with legal actions. In other words, they are only doing the free DIY stuff and not hiring attorneys. So… no court decision and no precedence. There will be nothing to see unless someone changes their mind.
Hamlet thinks it is a big deal a large company complied with a DMCA. Really!?! Like someone or some company has a choice?
Hamlet points to brand confusion. That is a real legal concern and a fuzzy area of Intellectual Property laws. But, this tends to be a trivial issue and this instance of purported abuse is an almost non-issue. In RL such cases are only brought in blatant cases of misrepresentation with substantial financial damage. Otherwise, it is simply too hard to prosecute. Plus brand confusion as seen in the image is very debatable.
Hamlet asks a reasonable question, can bloggers show competing products in the same photo? The answer is: yes. The UNLESS is when the blogger is promoting a product for personal (or their business) financial gain and deliberately creating brand confusion or misrepresentation and damaging another brand.
Hamlet’s last question assumes there is a precedent from this issue. There isn’t. It did not go to court, thus no precedent. But… it is an example of how DMCA can be used and/or abused. Can anyone file a DMCA against someone using their product in a picture they don’t like? The answer is and always has been: yes. Will it stand up in court? Not likely. But, it depends on a number of factors.
This case is more of an example of how the legal system can be abused than in how it actually operates or was intended to operate. It is also an example of how easily some companies can be scared.
A basic problem of American law is it allows people to use it to coerce people via threats of legal fees. America needs tort reform so that the losing party must pay the legal fees of the winner as is common in most of the world. Thus if you are unjustly accused and know you are in the right and can prove it, you can punish the fabricating accuser. Tort reform would stop much of the DMCA abuse. As it is in America, even if you win you lose.
Your take away here: this case is too small and far out in the weeds to worry about. It is a slow news week… month… may be year.