Receiving a DMCA “take-down” notification can be un-nerving for those not prepared or experienced with them, so I thought I’d share a recent attempt and my thoughts on it for other bloggers.
I’ve actually received several of these over the years, but this is the first that came directly from an individual rather than the individual’s attorney(s). As a blogger who critiques the ideas, notions, and intellectual works of pseudoarchaeology, I’m not unfamiliar with the ruffled feathers of those being criticized. Understandably, they don’t like their beliefs challenged, particularly not in public (or as the very first review listed on their book’s Amazon page!).
But only a few times have I ever received a “take-down” notification. Today is one of those days. So let me tell you about it.
If you aren’t aware, Jovan Hutton Pulitzer, who variously goes by the self-aggrandizing title, “Treasure Commander,” “the Commander,” etc., once had a claim about a decorative sword of Roman style (sold by companies like Design Toscano on Amazon). Specifically that it was a genuine Roman artifact, suggesting that Romans traveled to North America during the Classic period, etc., etc….
I’ve written about it. Years ago. Hell, another month or two and I might have forgotten JHP even existed!
If not for the poorly written “take-down” notification he sent today. Here it is:
Very scary language, right? And it is if you aren’t aware of how copyright, trademark, and Fair Use all apply with regard to blogging and, essentially, journalistic freedom.
Specifically, Pulitzer says my, “use of copyright and trademark of Jovan Hutton Pulitzer, along with content tagging, meta tagging and content creation is in violation of the individual Jovan Hutton Pulitzer and/or his business entities and concerns. Specifically: Use of name/image Jovan Hutton Pulitzer according to- IC 041. US 100 101 107.”
So what is all the letters and numbers at the end of his claim of violation? That’s the section of “International Trademark Classes” he feels are applicable. Lets see just how applicable they are. There are two potential areas of violation according to Pulitzer in the opening paragraphs.
If I were creating content and attaching his name to it with an intent to obtain prestige or gain by implying the content was his; that I am he; or that he endorses my content, I would certainly be in violation. It would also be a violation if I used content he created and passed it off as my own.
However, if it was used in content “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright” (17 USC §?107), which it is, I would be well within the protection of Fair Use. So copyright infringement is out. It’s important to note that I can reproduce his content on my site as long as I’m doing so in the confines stipulated above.
This includes images, text, sounds, video, music, etc. Ideally these would be snippets or portions and not the entire works, or perhaps thumbnails or lower quality images (with attribution) not grand works of art. However, most images on the internet already start off compressed and of low quality, so this is not a difficult bar to meet. But the “bars” for what’s considered too much is grey. The rule of thumb is use just what’s necessary to convey the thought or idea in a criticism, news reporting, scholarship, etc.
So copyright is out. I’m not violating that according to 17 USC §?107.
There seems to be implied a ludicrous notion that Pulitzer has trademarked his own name such that no one could ever discuss him publicly, in a way he disapproves. Not surprisingly, the laws regarding trademark violation are also set up with provisions for Fair Use. While it’s very similar to copyright in many regards, we’ll need to look at a different set of Sections of a different Title of the United States Code. Specifically, 15 USC § Subchapter III – General Provisions. This link provides a starting point for someone interested in trademark law.
But essentially, the following are considered to be limits of trademark rights:
- Fair Use
- Nominative Fair Use
- Parody Use
- Non-Commercial Use
- Product Comparison and News Reporting
- Geographic Limitations
- Non-Competing or Non-Confusing Use
Applicable to the pages Jovan Hutton Pulitzer claims are in violation of his copyright/trademark are numbers 1, 2, 4, and 5.
The pages where I mention Pulitzer are:
Your Very Own Roman Sword a la the Curse of Oak Island
(I deleted that one. It essentially linked to a product on Amazon that no longer exists at that link)
- Pretend Swordplay
- Hutton Pulitzer’s So-Called Roman Sword Report
- My Very Own Roman Sword
- Roman Swords and Questionable Motives
In these pages I’m writing about his involvement and claims surrounding an alleged Roman sword (which turned out to be a modern decorative piece). Claims which turned out to be either fake, fraudulent, or just fantastic based on science and reason (which of these three perhaps only Hutton knows for sure. Or maybe he doesn’t).
There was no other way to accurately describe the events and the claims without mentioning his name as the claims were his (Fair Use/Nominative Fair Use). I wrote of this on a blog venue that I make no net income from (non-commercial use). But, more importantly, I was reporting the facts of a story that is both interesting and important. Interesting because of it’s bold, fantastic nature; important because it exposes the pseudoarchaeological nature–the bullshit if you will–behind wack-a-doodle claims made in earnest by a person who expects to be taken seriously. The sort of claims that threaten genuine science and reason. In short, these articles compare and contrast pseudoscience with genuine science while delivering factual information (Product Comparison and News Reporting).
So what now?
My attorney said just see what he does next. I’m pretty sure my ISP (Ionos) understands the concept of Fair Use. The previous “cease and desist” or “take down” notifications they’ve received were from actual attorneys. This looks like a copy/paste job by Pulitzer that he cc’d to an attorney.
Because Pulitzer mentions the Digital Millennium Copyright Act (DMCA) in his C&D/take down, my ISP falls under Safe Harbor immunity, so they wouldn’t be liable nor are they compelled to remove content as he states in his silly letter. But, if my ISP acts on his C&D and disables my site, I would have the option to use section 512(f) of the DMCA to seek compensation for each day I’m down. Not from Ionos (a hosting company I totally recommend, by the way), but from Pulitzer. That’s where my own attorney comes in.
But all this is actually an irrelevant point. Because I think Pulitzer secretly or subconsciously wants me to succeed. He authorized each of the pages listed himself. No take-backs, Hutt!