What do you do if you sell a product on terms that legally bind your customers not to complain and they complain anyway? Pretend that the DMCA gives you the right to censor search results.
Roca makes a “non-surgical gastric bypass” (according to one expert, it’s mostly industrial thickeners) for which you can get a “discount” if you click through an agreement that they say gives them the right to sue you if you complain about them (“discount” is in quotes because I can’t find any way to buy their product without agreeing to these terms). They’ve sued a customer who went to the Better Business Bureau, a website where their customers have complained about their product, and a customer who agreed to testify on behalf of the site they’re suing.
Now they’ve sent an abusive DMCA notice to Google demanding that links to bad reviews of their product be removed. The notice makes a complaint about the use of its trademarked company name, despite the fact that the DMCA does not provide any remedy for trademark infringement (the hint is in the name, the “C” in DMCA stands for “copyright”) (it’s also vanishingly unlikely that any court would find its critics’ use of the name of the company to be a trademark infringement). Using the DMCA to try and get remedies for trademark infringement is totally illegitimate and abusive.
They also assert that the thumbnails used on the sites they don’t like are a copyright infringement, despite the fact that there are high-profile cases that establish the fair-use nature of thumbnails (notably the notorious Perfect 10 case); that fair use explicitly permits taking without permission for the purpose of criticism; and that companies have been slapped by the courts for sending DMCA takedowns over material that was obviously fair use.
First, thumbnail images in this manner are almost certainly fair use — something Google knows darn well, since it was the key defendant in the case (Perfect 10 v. Google) that established this point. Even outside of that authority, a basic four factors analysis would easily show that using thumbnails for reviews is fair use.
Second, the DMCA is not to be used for trademark claims, as the DMCA does not cover trademark.
Third, even if it did, the URLs are clearly not infringing, as a huge number of rulings concerning “gripe sites” that use the name of the company they’re criticizing in their URL have found. When such sites are clearly not the originating company and there’s no likelihood of confusion, such URLs are nearly always found to be non-infringing.
Either way, this seems to fit Roca’s pattern of doing anything it can possibly do to try to suppress criticism of its product. It really makes you wonder why the company is so worried about letting customers give an opinion about their product, doesn’t it?
Roca Labs Issues Bogus DMCA Takedown Notices To Google To Try To Hide PissedConsumer Reviews [Mike Masnick/Techdirt]