DMCA complaint regarding Julie Stewart thread of discussion

[Matthew Chan]

I received a DMCA complaint on this thread by my hosting provider. They are doing their job so I am not mad at them. However, this is very annoying to me.

My best guess is that Julie Stewart did not like us posting her email to us and she is now claiming copyright infringement over her email. I have challenged this DMCA complaint and my rebuttal will be in a separate post.

=================================

To Whom It May Concern:

We have received notice of a complaint of Digital Millennium Copyright Act (DMCA) violation under 17 USC § 512(c)(3)(A), regarding material hosted on your account. The infringing material can be found at:

http://www.extortionletterinfo.com/forum/index.php/topic,2346.0.html

Please remove the infringing content and respond to us confirming that this action has been accomplished. The disputed material must be removed as swiftly as possible. Please note that if the disputed material is not removed within 48 hours, we reserve the right to suspend your site to conform with the requirements of the DMCA.

If you feel that this complaint was made as a result of a mistake or of a misidentification of the disputed material, please send us a written counter notification within fourteen (14) days. A valid counter notification must substantially contain the following (as required per 17 USC § 512(g)(3)):

(A). A physical or electronic signature of the subscriber
(B). Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C). A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D). The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c) (2) (C) or an agent of such person.

Any counter notifications should be addressed to:

Legal Department
eApps Hosting
7742 Spalding Drive
Suite 363
Norcross, Georgia, USA 30092

If you have any questions or concerns regarding this complaint, please let us know.

Regards,

eApps Hosting

[Matthew Chan]

My two-part rebuttal against the DMCA complaint.

=============================

Dear Eapps Legal Department:

Respectfully, this link has an entire thread of discussion with mixed content. However, I am guessing the content being objected to is the email Julie Stewart sent directly to us.  If I am incorrect, please let me know.

I absolutely challenge and dispute this claim on the grounds that this supposed "copyrighted material" were actual emails sent to attorney Oscar Michelen and myself! Business letters and email issued to the intended recipient cannot be copyrighted. Any legitimate recipient of a business communication has the right to openly share their communication as there was no confidentiality agreement ever agreed to.

I would also like to point out there are no traditional privacy issues violated in that there is no sensitive financial or identifying information involved. She simply does not want the email she sent directly to us to be shared openly.

In reading your terms for counter notification, I will be forwarding you the copy of her email that was intended and sent directly to us. I will reference the case number to prevent confusion.

Matthew Chan

======================

Dear Eapps Legal Dept:

As promised, I have forwarded the actual email being sent to us that was posted online and referenced here claiming that it is "copyright infringement"

http://www.extortionletterinfo.com/forum/index.php/topic,2346.0.html

Business communications to intended recipients cannot be copyrighted and not protected under DMCA.  This is clearly evident as embarrassing emails are regularly reprinted in traditional media and tabloid media with no fear of reprisal.  If they have no fear of reprisal, hosting providers should have no concerns. While sent emails may be embarrassing, they are not remotely protected under any law and certainly not under DMCA

We believe this is the content in dispute.  The remaining content in the notated URL are posts from community members as well as post by myself and Oscar Michelen.

Please let me know if our counter-notification is sufficient to resolve this matter.

Matthew Chan

[Matthew Chan]

In my follow-up with eApps, my hosting provider, I got further clarification of what I need to do to reverse this bogus DMCA complaint.

This is a very informative link and I invite everyone to read this and share your thoughts.

http://www.citmedialaw.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content

The one thing I am particular happy about is this excerpt:

Note, however, that this provision also works against a person or company sending a wrongful takedown notice. If someone claims in a takedown notice that you are infringing their copyrighted material while knowing this to be false, then you can win damages from them in a lawsuit. In recent years, the targets of wrongful takedowns have fought back and won damages and favorable settlements from individuals and companies sending bogus takedown notices. For instance, in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit.


This is a great sample Counter-Notification Letter that I have incorporated most of into my own letter to eApps.  (I will soon post my own version.)

http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html

[Jerry Witt (mcfilms)]

Nice. I was wondering how someone could claim "copyright" on a letter and issue a DMCA take-down notice. It seems they can't. I can't wait to see how you decide to proceed.

A $125,000 settlement against lawyers who represent copyright trolls and then fire off bogus take-down notices would definitely be a "win" against the whole seedy "extortion letter" business.

[Matthew Chan]

I have provided eApps, my hosting provider, a very special counter-notification letter that goes beyond the typical form letter. I have upload my letter to Scribd in all its formatted beauty.

http://www.scribd.com/doc/72964099/DMCA-Counter-Notification-Letter-to-eApps-Julie-Stewart

This DMCA counter-notification letter was sent to eApps in response to Julie Stewart's DMCA complaint about the email she wrote to Matthew Chan & Oscar Michelen which they openly shared and posted for others to read.

This DMCA is not just a cookie-cutter letter. It is a letter that goes way beyond standard letters in explaining why the counter-notification letter was sent with a stiff warning of liability exposure for intentionally and knowingly filing false DMCA complaints.

She has continued to try to suppress business communications she herself has been sending out and abusing the DMCA complaint process.

I have also pasted the main text below.

================

November 16, 2011

Legal Department
eApps Hosting
7742 Spalding Drive, Suite 363
Norcross, Georgia, USA 30092
FAX: (404) 601‐7454

Dear Eapps Legal Dept:

This letter is written in response to your notification to me of a DMCA complaint [LEGAL
#CGE-424-69119] received about a web page(s) on my website. The page in question is:

http://www.extortionletterinfo.com/forum/index.php/topic,2346.0.html

My response to this complaint is as follows:

Allegations of Copyright Violation / Digital Millennium Copyright Act

The claims of copyright violation should be rejected because:

> The original complainant has provided no copyright registration information or other
tangible evidence that the material in question is in fact copyrighted, and I have a good faith
belief that it is not. The allegation of copyright violation is therefore in dispute, and at present
unsupported.

Because of the nature of the material being reported, I have strong belief that the
original complainant (who is a copyright lawyer herself) did not simply make an honest
error but has knowingly and willfully filed a false DMCA complaint. She has now
exposed herself to potential liability as described in 17 USC 512(f).

Let me be very clear. It was an email sent directly to me and my lawyer associate, Oscar
Michelen. Every email user in the world much less a copyright lawyer knows that
business communications for the intended recipient ARE NOT PROTECTED! If you
send email to someone, you take the risk of the receiver openly sharing it! Almost every
email user in the world knows this! Quite frankly, I find it outrageous that I have to
even write this letter given the material being complained about!

This communication to you is a DMCA counter-notification letter as defined in
17 USC 512(g)(3):

I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright
violation is based on mistaken information, misidentification of the material in question, or
deliberate misreading of the law.

Further, according to 17 USC 512(f), any person who knowingly misrepresents that
material is infringing shall be liable for any damages, including costs and attorneys’ fees
incurred by me and other related parties as a result of removing or disabling access to
hosting services or other materials claimed to be infringing or in replacing the removed
material.

My name, address, and telephone number are as follows:

Matthew Chan
1639 Bradley Park Dr.
Suite 500, PMB 110
Columbus, GA 31904
(762) 359-0425

I hereby consent to the jurisdiction of Federal District Court for the judicial district in which I
reside. I agree to accept service of process from the original complainant.

Having received this counter notification, you are now obligated under 17 USC 512(g)(2)(B) to
advise the original complainant of this notice, and to allow us to restore the material in dispute
(and not take the material down).

Please notify me in writing when you receive this counter-notification letter. Please don’t
hesitate to contact me if you have any questions or concerns.

Sincerely,

Matthew Chan
President

[Matthew Chan]

I received written confirmation from eApps that they received my DMCA counter-notification letter. In theory, a lawsuit could appear on my doorstep within 2 weeks. If not, the original content will be reinstated.

I would also like to publicly acknowledge Tyler and Lynn at eApps for taking so much time to educate and meticulously explain the DMCA process from their end and even drilling down to discuss each of my specific cases.

Having a great relationship with your hosting provider helps a lot in dealing with bogus DMCA complaints.

==============

Hello Matthew,

Thank you for your prompt attention to this matter. We are in receipt of your counter-notification with regard to an open DMCA complaint against material hosted on your account: (http://www.extortionletterinfo.com/forum/index.php/topic,2346.0.html)

I have verified that access to the disputed material has been disabled, and I certainly appreciate your efforts to conform with the requirements of the DMCA. The complaintant in this matter has been notified and provided with a copy of your counter notification.

Best regards,

Tyler B.
eApps Hosting