Ken Huey’s letter isn’t even meet the legal requirements of a DCMA notice, as far as I see.
http://www.trinitywebservices.com/copyr ... laint.html
He doesn’t declare under penalty of perjury he in good faith believes that his copyright is being violated, and so forth.
1. Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
2. Include the following statement: "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."
I believe this rescues Ken Huey from liability for a fraudulent claim. I also notice that the Dan mcgrath counter claim was rejected because it was not in proper format….
…and where have you seen this?
That uploaded notice, reprinted below, was what Ken Huey used as his DMCA notice, I assume?
http://fornits.com/wwf/posting.php?mode ... 9&p=334535 “June 23, 2009
To Mr. Michael Crawford, Administrator of Fornits, and Ginger McNulty, creator of Fornits,
This letter is relative to postings about to the treatment and identity of CALO students. Certain threads on your site have the names of current and former CALO students and the treatment team summaries of three students. We have now confirmed that all of this information was obtained by infiltrating the email accounts of two CALO staff. Once in these accounts, Dan McGrath, posting as “well proxied”, stole these digital files and published their contents on your site.
This letter is a demand under the DMCA (Digital Media Copyright Act of 1998) that all postings containing the names of students and their treatment summaries be removed immediately. The names of students were contained in a shift note email that was copied and pasted with exact misspellings. CALO owns the copyright on all internal email. The treatment summaries were similarly stolen and CALO owns the copyright on those summaries.
This letter further demands that any future posts stolen digitally from CALO be removed upon notification of their existence by any source.
Sincerely,
Ken Huey, CEO
CALO
130 CALO Lane
Lake Ozark, MO 65049””
In order for a letter to be considered a DMCA notice, it must contain certain elements:
http://www.copyright.gov/title17/92chap5.html#512[/b]To be effective under this subsection, a notification of claimed infringement must include substantially the following:
(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.
(vi) A statement that the information in the notification is accurate, [/b]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..
http://www.chillingeffects.org/dmca512/faq.cgi#QID130In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information: that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)]. A statement by the owner that it accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner
http://www.blogherald.com/2007/06/04/ho ... ca-notice/ is important to remember the six elements that the DMCA requires of any notice.
A proper DMCA notice should include the following statements that reads as follows:
“I have a good faith belief that the use of the material that appears on the service is not authorized by the copyright owner, its agent, or by operation of law.”
“The information in this notice is accurate, and I am either the copyright owner or I am authorize to act on behalf of the copyright owner.” [/b]
Without those elements, a service provider is
not expected to recognize this notice, and without a “good faith” statement, Ken Huey becomes less liable for his claims.
http://www.google.com/search?hl=en&rls= ... 22&spell=1 Appellant’s e-mails do not constitute notice under Section 512(c)(3) because there was no statement of good faith belief as required by subsection 512(c)(3)(A)(v).
