If what you are saying is accurate, I don't think he has a leg to stand on. But actual legal advise would be warranted if he is serious.
This competitor threatened to "contact my server" and have me shut down in 48 hours. He cited the Digital Copyright Act. I called my host, one of the big original names in hosting, and asked if he could do this. The help-tech, definitely over their head, said no, unless they had the passwords.
But I have read about something that the Digital Copyright Act provides to shut down sites.
Can someone bring me up to speed on this?
Personally, I would tell this guy to do whatever he wants.
And then just forget about it.
You're probably going to be better off getting legal advice, but here's my take on it:
If it's a trademarked phrase that you have on your website somewhere then they would be able to get you to remove that trademark from your website. If it's their company name and they own the trademark, then they might have a leg to stand on.
The Digital Millennium Copyright Act allows website owners whose copyright has been infringed upon to "force" a web host to remove the copyrighted material from your website. In this case, I would read the DMCA for more information about it.
Personally, I think it all comes down to "how much text" can be copyrighted and whether or not a text link can be copyrighted. In my opinion, words can be trademarked but text used in a link, if it's generic, cannot be.
Did you mean trademark? There is no such thing as a copyrighted name that I am aware of.
Do a simple TM search to see if the guy might be on the level. While this is not a thorough search, it will give you some idea--for example: if you find it.
The next step is to tell the guy to have his lawyer send correspondence on the matter so you can authenticate the claim. This puts him in a corner. It is now put up or shut up time. If he is serious, he can spend a couple dollars having an attorney mail you a standard letter.
People go half-cocked making demands every day. Until you see something official, it does not exist.
At the very least, have him send you proof via postal mail.
Also, contact customer service or sales at your host instead of tech support and ask what their procedures are when they receive a DMCA. Make sure you speak to someone with authority and queston them in detail about their procedures so you are prepared!
Most hosts will block access to your page or site if they receive a DMCA as they are also liable if they don't take action after being notified with an official DMCA.
However, the best/good hosts will, at least, notify their customer that they have received a DMCA and allow you some time (perhaps 12-24 hours) to make modifications or respond in the manner called out by the DMCA.
Do the above while waiting for a response from your lawyer, just in case this guy sends a DMCA to your host. You don't want to discover that your page or site is coming down in 2 hours unless you make changes that would otherwise require a full day's work.
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link to him with a 302 redirect ;o)
If the terms in your link are "descriptive" as you showed, and it's a generically common way to describe a location, and you can find many other web sites doing the same, then I'm pretty sure you can't copyright or trademark it as it's considered public domain. Otherwise, how would ANYONE have a link to something generic like "lake tahoe snow skiing" even if it's someone's company name?
I think he's barking up the wrong tree, but including the word "AT" would make it a sentence and not a company name such as "snow skiing at lake tahoe".
I would first check to see if his domain name is registered at the USPTO, if not, he hasn't got much of a leg to stand on. If it is registered with USPTO, I'd change my wording ASAP. I would suggest 10 minutes on the phone with a copyright attorney in any case just to calm your nerves.
Great advice from everyone. Thanks a ton.
I'm going to contact my host customer support and review their policy.
I'll probably change the link text to something like "snow skiing in lake tahoe".
And, I've been inspired to target the niche much more aggressively :D
If he files a DMCA your host *will* shut your site down - at least for a while. You have a chance to file a Counter Notice stating that the complainant is wrong and that you have all rights to the site/content. At that point, the host *should* put your site back up.
I have only been through a few DMCAs and that was how it worked for me. After the Counter Notice you should expect to get sued if the complainant is serious - or you should sue them.
Another option is to cover your tracks (leave that up to you) and then send the complainant a similar complaint - also threaten to file a DMCA. What comes around goes around.
If he files a complaint, won't my host notify me and give me a grace period to remove/change the infringing link?
not necessarily, they could block access any time after receiving the DMCA. That's why I suggested you contact them and find out their exact policies and procedures.
I had a similar problem with a big insurance company progress....
They threatened to sue me because I was allowing people to advertise in my search engine for their trademarked name.
I just emailed them back and told them to go ahead and sue me because I had all the time in the world to play with them in court for as long as it took.
Then I proceded to chew them out for trying to keep the little guy's down. HAHAHA!
They didn't ever do anything about it though. Most people are all talk and no action.
They know that they can't win a case like that so they just threaten people and hope you don't know any better and simply stop what you are doing.
Most companies won't do anything because it cost's them more money to sue everyone than it would to just send threatening emails.
I mean, they could go to any search engine on the net and do a search for their trademarked name and find countless sites advertising for their name and most of them are affiliates of theirs? Stupid!
Well, I've contacted my host and reviewed their policy. I've also put a call in to their legal department to see if I can get some high-priced-corporate advice for free (then again, I do give them way too much for the hosting).
Mainly, I want to see if there is a judgement call made by their legal team when someone makes a DMCA complaint. Or, do they just pull the questionable content.
They do provide for a counter-claim, in which case they will immediately restore the info. Sort of funny.
|link to him with a 302 redirect ;o) |
Wow, this things been taken to another level. Now, this guy has been clicking my adsense to death, and has even forwarded me an e-mail that encourages other's to do the same, chain-mail style.
Forward the information he sent you to GOOGLE ASAP and tell the guy you intend to file FRAUD charges unless he ceases immediately as he is DEFRAUDING advertisers with his actions. Technically I think he's committing a federal crime at this point.
I'm not sure I'd even worry about changing your links at this point as he just went from a civil action to committing criminal acts. It would take someone with a real set to come after you when he's committing FRAUD on your advertisers, it would be just plain stupid as he's just given you real damages for a counter claim.
Just make sure you don't stop him unless he's done at least $100+ in damages so it's a felony instead of just a misdemeanor :)
If you're looking for an attorney, Martindale-Hubbell has a really great lawyer rating/finder service. It's what the pros use within the profession. Amazing.
And Nolo is good for learning the basics about how trademark law works.
Google 'em, you will be satisfied. Yum Yum.
Southenmost, can you ban the guys access by his IP in .htaccess?
SetEnvIf Remote_Addr ^xx\.xx\.xx\.xx$ getout
Don't ban him. First of all, it won't help, since he's emailed telling people to do it.
And more important, each click of his is just another nail in his coffin.
Congratulations! He lost his temper, and he's lost. All you need to do now is follow through aggressively.
I have forwarded his e-mails to google with an explanation of events.
He has incriminated himself repeatedly, and seems bent on damaging my reputation in my town.
He forwarded me an e-mail that he claims to have sent to various local busineses that use Adwords which says, and I quote:
Many of you are using paid inclusions to be ranked towards the top of google’s search engine. I have no problem with that whatsoever.
But what you may not realize is that Google allows other webs sites to grab your paid ads and list them on their own websites without your permission, hoping that somebody clicks on your ad and here is what happens.
You pay full price for the click through. The website that generated the click through gets a kick back from google. And I can tell you that it is being abused worse than a little boy in Michael Jackson’s bedroom.
Case in point, go to [my url - removed for forum rules] A local "blank" I want to be all on the internet. I f you have paid inclusions with google, he has probably picked you up ads already.
A web site with no content that is just trying to take advantage of your hard work and content.
I love visiting them and clicking on all the ads at least five times. Just your five dollars worth (end of quote)
This is only one of the six e-mails that he sent me last night. I'm going to research the legal end of this. Thanks for the advice on where to start looking. This has really rattled me.
oh my god - what an idiot
Slander and admission of guilt that he's defrauding the very same people he's sending letters, hope he really sent those emails as you have actionable damages. I would be careful as this person definitely has some splinters in the windmill of his mind. You may want to file a report with the police for harassment at a minimum and fraud if you can prove it (he did confess to it) just to get it on record.
"Wow, this things been taken to another level. Now, this guy has been clicking my adsense to death, and has even forwarded me an e-mail that encourages other's to do the same, chain-mail style..."
If he is doing that, then he has already lost any semblence of legality for a claim or lawsuit. In fact he has set himself for one - and from what I understand, encouraging others to also commit fraud is known as "conspiracy to commit fraud", which carries a much higher penalty than simple fraud.
And perhaps I am not understanding something here. He is complaining about HIS ads appearing on YOUR site, and then people clicking HIS ads? Isn't that what he wanted was people clicking his ads?
And he is wrong about the part of being listed at the top of the search engine also, but he seems to be pretty clueless anyway.
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Actually I think he e-mailed local businesses who's ads were appearing on the site and told them that he was wasting their advertising money by clicking 5 times per visit.
Maybe you could get with those local businesses and hire a lawyer together.
Now I'd definately link with a 302 redirect!
here's some evil questions:
does he serve adsense ads?
could you cloak him to his own site?
or serve him his own adsense code?
redirect him to a site that installs 'spyware'?
Seriously though, any word from Google?
I have not heard back from Google yet.
Apparently, the guy was the top dog ten years ago in the search engines. He believes that Adsense is the end of the world, but doesn't appear to use Adwords (or adsense). A friend of mine who knows the guy (it's a small town) says that he mostly likes to sit up late, in front of his computor, with his buddy Coors lite. That would fit, given the incoherent and progressively more demented e-mails that he sent the other nite. He has quieted down though...not an e-mail or a phone call in two days. My friend may have warned him that he was treading in hot water.
I'm not sophisticated enough for re-directs and cloaking, so I wouldn't even know where to begin. I'm hoping Google will boot him from the index. Then again, I'm going to enjoy trying to outrank him.
When you finally do outrank him drop off a case of Old Mil and a print of the SERPS on his front porch.