GoPro Uses DMCA to Take Down Article Comparing Its Camera with Rival

http://www.petapixel.com/2013/03/20/gopro-uses-dmca-to-take-down-article-comparing-its-camera-with-rival/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+PetaPixel+%28PetaPixel%29

by jamesbritt • 13 years ago

225 80 13 years ago

petapixel.com

protomyth• 13 years ago

Seems GoPro issued a statement (see bottom of http://fstoppers.com/gopro-issuing-dmca-notices-for-use-of-g... ), but it still is a poor and stupid way to go about things.

supercanuck• 13 years ago

The important part:

“The letter that was posted next to the review on DigitalRev was not sent in response to the review. Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store. As part of our program – we ask merchants who are selling our product to use authorized images. That is why DigitalRev was contacted. But – our letter did not clearly communicate this and that is something we will correct.”

jeremysmyth2• 13 years ago

Nice bit of spin from GoPro.

If you read the DMCA takedown, you'll see that it refers specifically to the URL of the review, not to any other URL, and certainly not to the location of any product sold on any e-commerce site.

In fact, their e-commerce site still contains GoPro products. http://www.digitalrev.com/search?t=pro&q=gopro

In short, either GoPro are lying through their teeth, or their legal team engaged in a monumental cock-up. In either case, this looks like a clear-cut misuse of the DMCA, a claim that can easily be supported by GoPro's own words, if you take them at face value. I don't.

glimmung• 13 years ago

The /most/ important part would seem to be "That is why DigitalRev was contacted" - because it seems that they were NOT contacted, but rather SoftLayer were.

An obnoxious use of an obnoxious piece of legislation, followed by a smokescreen. More likely cock-up than conspiracy, but leaves a nasty taste.

salman89• 13 years ago

Feels like it was a bail out by GoPro due to the public beating they are taking for the takedown notice, but obviously there is no proof.

YokoZar• 13 years ago

It's a clear backpedal, they're trying to claim they asked for something completely different because what they were asking for was so obviously unreasonable.

yock• 13 years ago

I wonder what GoPro would think of a positive review from a retailer who didn't use approved images and branding.

codesuela• 13 years ago

well that's the odd thing

> Perhaps the strangest part of it all is that the review highly recommends the Hero3 Black edition is the clear winner between the two.

as per the article of this thread

sliverstorm3• 13 years ago

Yet another example of The Man trying to stifle dissent-wait, what?

notahacker• 13 years ago

Of all the dubious DMCA takedowns I've seen, this one has to take the Hanlon's Razor prize:

Never attribute to malice that which is adequately explained by stupidity.

UnoriginalGuy• 13 years ago

Online retailers can only use "authorised images" to advertise GoPro products? That is more than a little sketchy. They cannot use their own original photographs that they have taken and own the copyright to?

Plus why does someone have to be an authorised retailer to sell a product? Once GoPro sells it to a wholesaler it literally isn't their stuff any more (first sale doctrine), now there are certain laws protecting GoPro from things like counterfeiting or trademark violations (basically still just counterfeiting) but that doesn't apply here (since they're selling the original product).

Does this also mean that if someone buys a GoPro and decides to sell it on eBay second hand GoPro are going to try and have it taken down? Haven't the courts found that that is unlawful (there was a big Oracle case about it I believe[1])?

In general GoPro just took a huge nosedive in terms of my opinion of them. Their statement actually lowers my opinion more than the original DMCA notice did.

[1]http://www.techdirt.com/articles/20120703/11345519566/eu-cou...

laumars• 13 years ago

> Online retailers can only use "authorised images" to advertise GoPro products? That is more than a little sketchy. They cannot use their own original photographs that they have taken and own the copyright to?

I maybe mistaken here, but I'm fairly sure reporting / reviews are classed as 'fair use'.

If this was ever to go to court, then I'm certain the judge would just throw the case out. However GoPro would never push it that far, their aim is just to take the review offline for the immediate 2 weeks in the hope that when it goes back online, most people would have moved on. Ironically though, GoPro have attracted significantly more attention to the article by trying to bury the review.

I say "ironically", but "deservedly" equally works. I hope this serves as a warning to other companies wishing to abuse DMCA take downs (though I doubt it will).

rayiner3• 13 years ago

Discussing this is hard because it's not even clear what the legal theory is behind the notice. You cannot claim copyright over someone else's picture of your product. As for trademark--you can only sue for trademark infringement if your mark is used as a mark in commerce. A trademark holder doesn't own the mark itself, just the right to use the mark to label its products.

The only thing I can think of that would even be plausible is if the review site used official images of the product in its review without authorization. But the notice doesn't even begin to hint at that theory.

sliverstorm3• 13 years ago

Ironically though, GoPro have attracted significantly more attention to the article by trying to bury the review.

Elsewhere in this comment page, someone notes that the review is actually strongly favors the GoPro. Maybe this is some kind of incredibly perverse strategy...?

smackfu• 13 years ago

>Online retailers can only use "authorised images" to advertise GoPro products?

I think it's more like "Only authorised online retailers can use GoPro's images to advertise GoPro products." Which is fair enough, since GoPro owns their photos, although seems like it will only hit the lowest effort retailers.

tlrobinson2• 13 years ago

I think it's the other way around: "unauthorized" resellers aren't allowed to use GoPro's copyrighted images.

Either way, their DMCA notice was horribly worded.

ssimpson• 13 years ago

I have a friend that sells car parts online and one of the companies whom he was an authorized retailer for, did a DMCA takedown because he used their logo. They contacted the hosting company who took down the whole server. his store was down for several days while we worked out the issues. kind of ridiculous.

electic• 13 years ago

Safe to say I won't be buying GoPro. This is similar to the record industry and I stopped buying music due to these shenanigans.

plainOldText• 13 years ago

I had actually purchased one, but then I returned it as I was extremely disappointed with it. But after seeing this, I lost any consideration I had left for this company.

zobzu• 13 years ago

The Sony is actually a better buy in many cases - and twice cheaper.

The only thing GP does really better, IMO, is that it records at a true 1080p60fps. The sony can record in slowmo, ie capturing at 1080p60 and recording at 1080p30, slowed down.

(Then again maybe that's because I've no use of the features such as the wifi remote)

zevyoura• 13 years ago

There are also huge quality control issues with the GoPro 3 line, check out the amazon reviews.

sliverstorm3• 13 years ago

The Sony might be the better buy in certain regards, but as someone who has owned a ContourHD and an HD Hero (1), mounting is huge. Much more important that you would have thought at first. It makes all the difference in whether or not you can get good shots, and mounting is one of the biggest things GoPro has done right.

jamesbritt2• 13 years ago

The Sony is actually a better buy in many cases - and twice cheaper.

Is this the same Sony that rootkits users' machines and added the "You cannot sue us" clause in their PlayStation Network EULA after they botched data security?

It's getting harder to find companies who don't demonstrate a skeevy side.

Wonderdonkey• 13 years ago

Same here. I was planning to buy a HERO3 Black Edition and several accessories with my tax refund. Not now.

Use DMCA, lose me as a customer.

analog4• 13 years ago

The Contour+2 looks like a good alternative. I've been looking through the reviews after my Hero3 Silver turned out to be a lemon. Main differences seem to be that the Hero3 has slightly better in-camera image processing, but is less reliable.

ceejayoz• 13 years ago

All of their arguments are bullshit for one big reason: they talk only about trademark violations in the notification, while DMCA covers copyright violations. They appear to claim no copyright violations, which makes it totally invalid.

lutorm• 13 years ago

Yeah, I read the notice and was thinking "are they really claiming that reproducing the name of the product is a copyright violation?"

threepipeproblm• 13 years ago

Why call Mr. Hayes, who will be motivated to downplay this PR debacle and abuse of the law? My company was planning on buying a couple of these to document an R&D project... I just called sales and told them why I was no longer planning on ordering. (415) 738-2480, then 1, then 3, then 1.

Any idea what product the original review recommended over GoPro?

commandar• 13 years ago

>Any idea what product the original review recommended over GoPro?

Not sure, but the Contour ROAM line is one of their bigger competitors. Sony also has a line of compact HD camcorders in the same class.

EDIT:

Now that I actually bothered to RTFA, it appears the original comparison was with one of the Sony cameras.

x0r• 13 years ago

You only have to look on YouTube for comparison videos and you will see that the Sony is a far superior camera. Especially the steady shot functionality which should be mandatory for "action" footage.

This is an obvious sign that a company is scared of their shitty product (see the recent LayerVault fiasco).

Also, DigitalRev is not the type of digital publication you would want to get on the wrong side of. They have a huge consumer base.

anigbrowl2• 13 years ago

I had been planning on picking up one of these for an upcoming film project (my 'day job'). Thansk to this, I've become aware of the Sony AS15 and decided it suits my needs better. Smooth move, GoPro!

http://en.wikipedia.org/wiki/Streisand_effect

hamburglar• 13 years ago

Same here. Up until this point, GoPro had actually done a pretty successful job of convincing me that they were the clear leader in this product category. I was 100% unaware of the Sony product, which I now realize compares pretty favorably. Hilarious.

analog4• 13 years ago

Also worth looking at are the Drift HD, Contour+2, Panasonic A100 HD.

anigbrowl2• 13 years ago

Thanks, good suggestions all.

rmc2• 13 years ago

GoPro seem to be radically misunderstanding what copyright is and the DMCA

tlrobinson2• 13 years ago

This is diassapointing. I've been a fan of GoPro for awhile, but between this and their poor customer service I'll definitely consider other options next time.

mistercow4• 13 years ago

Under the safe harbor provisions of the DMCA, DigitalRev doesn't have much wiggle room for not honoring a DMCA notification. They can't, for example, investigate to see if the claims in the notification are true. As long as the form of the notification is valid, they have to honor it.

However, in this case the form of the notification is not valid. By H.R.2281 Section 512 [1], under the heading "ELEMENTS OF NOTIFICATION", a DMCA notication must include:

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.

GoPro did not identify any copyrighted works. They identified trademarks, which is a whole nother segment of IP law. To give you an idea how how much the DMCA does not apply to trademarks, the word "trademark" appears only six times in the entire text of the law. Five of those times, it's part of the title "Commissioner of Patents and Trademarks", and the other time it just says that the bill doesn't annul or limit trademark rights.

So long story short, DigitalRev should not have honored this DMCA notification, because it simply isn't a valid notification. It'd be like if I filed a DMCA notice against my neighbor, and under "infringing material" I listed "He keeps letting his dog crap in my yard."

[1] http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR: (sorry I can't link to the specific section because THOMAS is kinda backwards like that)

will_brown3• 13 years ago

>We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company:

“GOPRO” Registered: 3/3/2009 US Registration# 3032989 “HERO” Registered: 12/20/2005 US Registration# 3308141

Based on the above, I have to agree the DMCA Notice seems to be embarrassingly improper as an attempt to enforce alleged TM violations. Even assuming the TMs above were actually CRs, it would still be improper to try to enforce a CR when the "alleged" infringement is obviously permissible under the Fair Use Doctrine.

Fair Use: In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. (http://en.wikipedia.org/wiki/Fair_use)

jerf• 13 years ago

Fair use doesn't apply here. Fair use is a defense that can be used if charged with copyright violation that would otherwise be a violation of the copyright. It doesn't relate to trademarks. In terms of trademarks, it simply isn't illegal to mention the product by its trademarked name, so no defense is necessary in the first place as it is not even a valid charge.

Subsequent followup by the company indicates they may have a valid IP claim on other materials (and may not, I don't know and frankly I don't care), but one that the DMCA can't be used to enforce.

Cyranix• 13 years ago

THOMAS is indeed pretty clunky, which is why I prefer Cornell's site (though it doesn't provide permalinks to arbitrary depth either): http://www.law.cornell.edu/uscode/text/17/512

mk3• 13 years ago

Seems like a legit way to loose hardcore fans. People generally do not like corporations acting like dks.

rdl2• 13 years ago

I wonder if Softlayer leaned on DigitalRev at all.

kubatyszko• 13 years ago

Never liked GoPro (it just looks soo stupid regardless of mounting option). Now they gave me a reason to continue my feeling indefinitely.

rplnt• 13 years ago

I really love DMCA. It does not work in cases it should work, it can be abused for basically everything, it's misrepresented as some kind of international law, ... It's so stupid it hurts.

guelo• 13 years ago

Isn't there a big penalty for issuing DMCA notices maliciously?

uribs• 13 years ago

So I assume this means that Sony camera are better than GoPro ones.

I extend my thanks to GoPro's legal team for so efficiently delivering this information, saving us the trouble of reading a whole article ourselves or buying an inferior device.

MrQuincle• 13 years ago

Picture from google instant preview: http://www.dumpt.com/img/viewer.php?file=i3m7hqw4p1l437153by...

"The Sony does have one feature that sets it apart from the Hero3 cameras, inbuilt image stabilization. This is not optical, but it does take care of a lot of low level vibration and really works very well. The Sony battery surpasses that of the Hero3. Sony is claiming 13 hours of battery life at 1080p which is great for those who may be out shooing in conditions where you will not have access to charging batteries supply. The waterproof housing for the Sony relies on you taking the front off to put the camera into it. The problem is the front of the housing is only ..."

I think someone at GoPro just got pissed at DigitalRev because they don't care if they sell GoPros or Sonys.

vaadu• 13 years ago

Are we sure the takedown wasn't sent by Sony to get sympathy?

deel• 13 years ago

I don't own a GoPro, but wanted one badly until I read that. In fact I was one of those people who would suggest it as a great camera for other people who wanted a water-proof action oriented camera. 2 of my close friends own GoPro's because of me and my big mouth. I doubt GoPro will be reading this as they have their heads up their asses, but I'll be using my big mouth to scare people away from GoPro from here on out.

paganel• 13 years ago

I'm in the opposite situation, sort of, as in one of my friends was always giving praise to GoPro cameras, so much so that I was really intending to buy their latest model. After reading some of the comments in here and then going and reading Amazon reviews from other GoPro customers suffice is to say that I'm not going to buy any of their products anytime soon.

DigitalSea2• 13 years ago

Seems like the cool GoPro company is just another company after all. I honestly thought GoPro were different from other companies, grounded and in touch with what their customers actually want but after hearing of this my view of the company I admired has been forever tarnished. Even if this DMCA was just an accident, it's a pretty big accident. As pointed out in another comment GoPro didn't actually supply a valid DMCA request, they didn't cite what exactly was being infringed upon and instead spoke of trademarks which are separate. Are Hacker News and everyone here who mention GoPro going to get DMCA notices too for using their trademarks under fair-use?

antiterra• 13 years ago

> Hacker News and everyone here who mention GoPro going to get DMCA notices too for using their trademarks under fair-use?

No, clearly not. They were incredibly incompetent in both the writing of the takedown and their attempt at a public PR response. However, it's pretty clear they're not on a mission to police the usage of their name, someone too 'smart' for his/her own good probably just thought of a misguided idea to try to tackle grey market resellers.

This company is supposedly rolling in dough, with a stake from FoxConn and talk of an upcoming IPO. Why don't they have (or use if they do have) proper legal and PR resources?

So where else is it amateur hour at this company? Is someone competent doing their accounting, or is their comptroller also their head of social media or something?

analog4• 13 years ago

The recent launch of the Hero 3 was pretty terrible. The CEO had to issue a public apology. [1] Plenty of problems that made the cameras unusable.

They are now basically an amateur camera that has been well marketed unfortunately.

[1] https://www.facebook.com/gopro/posts/271125813016872

DigitalSea2• 13 years ago

As a GoPro Hero 3 owner I know all too well of the botched launch of the Hero 3. It was almost rendered useless until they acknowledged the issues and released updated firmware to fix the issues. What makes matters worse in that situation is I and many others contact their customer support for help and they would not acknowledge it was a known or widespread problem until obviously things reached boiling point. The camera is much better now, but having said that it is obvious the company is being run by the wrong people.

XEKEP• 13 years ago

Let's just hope that this GoPro's f@#kup will make some corporate lawyers to think twice before trying DMCA takedowns.

alexvr• 13 years ago

You would think GoPro would see this coming. If I were CEO of the review company, I would demand that the article be reinstated and hope to God that GoPro sued me so I could get some extra cash and teach them a lesson. What on Earth were they thinking? Hire a lawyer for God's sake.

jasonlingx• 13 years ago

From http://www.chillingeffects.org/question.cgi?QuestionID=132:

Question: What are the counter-notice and put-back procedures? Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)] Identification of the material and its location before removal [512(g)(3)(B)] A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)] Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)] If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]

beedogs• 13 years ago

Well, GoPro's just been added to my shit-list, joining the illustrious ranks of Sony, GoDaddy, and Chick-Fil-A. Well done, guys. I was actually considering purchasing one of your products at some point.

GoPro Uses DMCA to Take Down Article Comparing Its Camera with Rival

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