Month: June 2012

Guardlex – DMCA Takedown Notifications over hyperlinks to non-infringing content

Business, Hosting

As I am sure many of you know, stealing another individual or business’ copyrighted intellectual property is theft with damages up to $150,000 per incident.  To fight online piracy of intellectual property the Digital Millennium Copyright Act, or DMCA for short, was signed into law on October 28, 1998 by President Bill Clinton.  The DMCA outlines methods for reporting copyright infringement such as “DMCA Notifications” as well as what those methods must contain:

  1. 512(c)(3)(i)A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. (ii)Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  3. (iii)Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  4. (iv)Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  5. (v)A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  6. (vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In simple terms, the notification must contain a statement that the notification is made in good faith, by an authorized agent, that it clearly lists the infringing content and that the information in the notification is accurate, that the individual or company submitting the notification is the copyright owner of the copyright or an authorized agent, the location of the original works that are being infringed upon, and a physical or electronic signature.

A DMCA notification, to be valid, there has to be infringement of a copyright.  When there is not infringement, a DMCA Notification in and of itself is not valid.

We have received two DMCA notifications [so far] from Guardlex.com where the DMCA Notice is centered on a simple hyperlink on the site of a customer of ours.  The link in and of itself is not infringing, the page in which the link is contained is not infringing, and the destination of the link is not infringing.  Guardlex.com apparently feels that they can supersede the First Amendment Right to Free Speech by submitting invalid DMCA Notifications.

This is unfortunately likely to be a growing trend due to Google penalizing sites for overzealous Search Engine Optimization, or “SEO”.  Companies who wish to have their sites listed high in Search Engine Result Pages, or SERPS, hire “SEO Agencies” to improve their search ranking.  There are positive and organic “SEO” methods that can be conducted such as optimizing the layout of a site and usability, creating quality content that others will want to link to, etc and there are negative and inorganic “SEO” methods that should not be condoned.  Negative and inorganic “SEO” generally consists of obtaining backlinks from as many sites as possible, often web directories and blogs, and keyword stuffing among other methods.

The end result is that there are millions of companies out there that have hired “SEO Professionals” to optimize their SERPS without a clue as to what is actually being done, and now that the Google Panda update is live, we are going to see these companies fighting to have all of these negative SEO practices reversed.  Some companies are doing this the legal way by summating cease and desist letters or simply contacting the site administrators and requesting the links to be removed, but the downside is that the site operator has no obligation to comply with a cease and desist or a simple request.  When these companies are being told, “No,” they are then turning to the Digital Millennium Copyright Act to have the links removed.

Now the issue comes down to a simple question, “Is a link that does not point to infringing content, infringing?”  I believe the answer to this question to be a plain and simple, “No.”  Unfortunately these DMCA notifications demanding that the allegedly infringing links be removed are not valid as the links themselves are not infringement.  There is no way to demonstrate what work is being infringed upon as no intellectual property is being stolen or infringed upon.  This can be equated to me giving directions and a means of travel to the nearest Wal-Mart as infringing upon Wal-Mart.  Just because I give you the location, and an easy way to get there – does not mean that infringement has happened.

Here is an example, with personal and identifiable information redacted, of an invalid DMCA Notification:

Hello,

My name is Redacted Redacted, I work in the Anti Piracy Department of Redacted (http://www.Redacted.com), we provide anti-piracy and Intellectual Property protection services for Redacted company (http://redacted-site-hosted-elsewhere).

As such I am personally authorized to act on behalf of the owner of the aforementioned company.

It has come to our attention that your website (or website hosted by your company) contains links to the Redacted company website (http://redacted-site-hosted-elsewhere) which results in material financial loses to the company we represent.

This material financial loss is due to search engine penalties resulting from the links originating under your control.

I request you please remove from the following website http://redacted-site-hosted-with-us all links to http://redacted-site-hosted-elsewhere website as soon as possible. Please see the list of website pages in question:
http://redacted-site-hosted-with-us

In order to find those links, please do following:

1) If this is an online website directory. Use directory’s search system to look for http://redacted-site-hosted-elsewhere links.

2) If there are any hidden links in the source code of website. Open the website’s home page and view its source code. Search for http://redacted-site-hosted-elsewhere in the source code. This will reveal any hidden links.

It is our understanding; the links in question have not been authorized for use by our client, its agents, or the law.

Therefore, this letter is an official notification to effect removal of the detected infringement listed above.

I further declare under penalty of perjury that I am authorized to act on behalf of the trademark holder and that the information in this letter is accurate.

Please, remove all links to http://redacted-site-hosted-elsewhere website within the next 48 hours.

Please do not hesitate to contact us if you are at all unsure how to remove the links. We will be happy to assist you in any way to resolve this issue as soon as possible.

I ask, what is it going to take for this abuse of the Digital Millennium Copyright Act to end?  I also ask, what law is there that states that one site operator must obtain prior authorization from another site operator in order to hyperlink?  Do we really want to live in a world where creating a hyperlink to a good site or useful resource requires an attorney?

Disclaimer: I’m not an attorney, this is not legal advice, this post contains the facts to the best of my knowledge at the time of publication.  Should any information represented as fact be demonstrated to be inaccurate or non-factual I will be happy to make adjustments.  Any information not explicitly presented as a statement of fact is my opinion.

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BlueCross BlueShield of Tennessee [rant]

Miscellaneous, Rants

A lot has been changing in my life over the last 12 months, and it has been a while since I have written a post.  I have been staying pretty busy with work and family, the business has been growing and I’m about to hire a new full-time employee.  My family is also growing, as I my wife and I will be having our first son come August.  Having a growing family means that health coverage has become a new priority for me, where I have been without health insurance for the last ten years or so.  While I can’t say that I know anybody who loves insurance companies or their practices, I can certainly say that of all I have worked with BlueCross BlueShield of Tennessee is the worst so far.

I’ll have to give a bit of a preface and I’ll start by saying that my wife has had health insurance through BlueCross BlueShield of Arkansas for a couple of years.  We had no issues with them when it came to doctors visits, prescriptions such as Nexium for my wife’s chronic heartburn, Advair for her asthma, or anything else that she needed medically.  My wife does have terrible acid reflux to the point of her aspirating acid into her lungs resulting in damage and regular asthma flareups.  She has been on Nexium for about two years and over those two years her asthma has gone from putting her in the hospital almost every few months to almost non-existent.  That is, until we changed to BlueCross BlueShield of Tennessee…

My wife went to refill her Nexium prescription at CVS and was told that BlueCross BlueShield of Tennessee was requiring prior authorization for the prescription.  They claim that without a “level 3 esophagus erosion” that Nexium is not necessary and that over the counter Prilosec, which is effectively half the effectiveness and twice the out of pocket price, is all that she needs.  Keep in mind that she already had chronic acid reflux resulting in chronic obstructive pulmonary disease, COPD for short, and now she is pregnant which is known to cause acid reflux in those who have never had heartburn in their lives.

Taking this all a step further with my wife being pregnant, having chronic acid reflux, and asthma she now also has gestational diabetes.  Gestational diabetes is essentially, as the doctor explained it to us, where her body cannot quite keep up with the insulin demand of her and the baby and, as such, she is effectively diabetic for the duration of the pregnancy.  The doctor wrote my wife a prescription for a meter, test strips, etc…  When we went to CVS Pharmacy to fill these prescriptions as they are required to monitor her blood sugar to avoid serious complications such as diabetic coma, damage to her and the baby, and a long list of other side effects of diabetes CVS informed us that BlueCross BlueShield of Tennessee is rejecting the prescriptions and that BlueCross BlueShield of Tennessee requires “prior authorization.”

For whatever reason BlueCross BlueShield in what appears to be every attempt they can make to keep every penny they are paid, seems to require prior authorization for every prescription my wife has been written.  I am beginning to wonder what the point of having insurance is, if they are going to reject all claims while continuing to accept payments for the insurance coverage.  We never faced this issue with BlueCross BlueShield of Arkansas, so it’s obvious the administrators in Tennessee are, at the least, greedier.  If a doctor writes a patient a prescription for a blood sugar meter and test strips, what does the insurance company think?   Do they think that we are making this up so that we can get one over on them when it comes to a $110 prescription of blood glucose test strips?

Why is BlueCross BlueShield of Tennessee requiring prior authorization from the doctor for a brand new treatment on a brand new medical issue, especially gestational diabetes?  None of this makes any sense at all to me.  I thought it was in the best interest of the insurance provider to make sure issues such as these are taken care of to avoid other, bigger issues down the road that result from lack of treatment.

At the end of the day, if you are looking for a health insurance company and BlueCross BlueShield of Tennessee is on your list, you may want to look at alternative options.

Disclaimer: All information contained within is factual to the best of my knowledge.  Any information that is not purely factual is my opinion.  In the event that information is presented as factual when in reality it is not, there is no malice intent and I will be happy to make an update or correction when it is brought to my attention.

Update 1 – 06/13/2012 2:30 PM

The blood glucose meter that my wife was provided by her OBGYN was a OneTouch Ultra Mini, however, the insurance company is absolutely refusing to pay for the test strips for this meter.  They have informed us that our only option is to choose a testing strip that they will pay for (read: cheap) and then to go buy a matching meter out of pocket although we already have a perfectly functional blood glucose tester.

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