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  1. #1
    Join Date
    Dec 2005

    Default DMCA

    Hi everyone,
    I would deeply appreciate your advice in the following matter:
    On September 27th, 2005, several unfair acts had been taken against our cigarettes online shop. Our account was cancelled without any court decision and the cancellation was done based only on a third-party letter. As result, our cigarettes online shop was unavailable for 3 days and we were forced to change our hosting provider Hostway Corporation.
    On 26th September we received a notification from Hostway Corporation. The email had the following subject: Digital Millennium Copyright Act (DMCA), through which we were asked to “disable or remove any such copyright infringing material”.
    In the email it was also stated the following: “It has been brought to our attention that the URL … contains copyrighted information which allegedly infringes upon a third party's copyright. A copy of the email sent to Hostway is attached below. ”
    The attached email was originally sent by Phillip Morris Inc.
    By this email, the representatives of Phillip Morris Inc. requesting Hostway Corporation to deactivate our site because its infringing Philip Morris USA Inc.'s intellectual property rights, including Marlboro(r) and other brands.
    We would like to draw your attention that we don’t consider our activity as illegal for more then one reason.
    First, we have never claimed to any rights for other’s property. We clearly stated on our website that: “All registered trademarks are the properties of their respective owners”.
    Next, we sell ONLY cigarettes which are manufactured under license of brand owners including Philip Morris we are dealing only with end users.
    Finally, we have never received any judicial citation or notifications about any trials. The fact which was very annoying for us was that we had received only a short notification from our hosting provider and without any legal resolution or court examination our account was deactivated. Moreover, by this notification they gave us just 24 hours in order to remove the so said infringing material.
    We had no chance to defend ourselves, and all our emails were ignored by Hostway Corporation, which cancelled our account referring only to a third party notification, and not basing on any legal court decision.
    I would be grateful to receive any legal advice regarding the situation described above. Also could anyone let me know how can we avoid such situations in the future and can we be possibly protected way from such acts?
    Each advice and assistance would be highly appreciated.

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default DMCA Notice

    You admit receiving a notice under the DMCA (Digital Millennium Copyright Act". The DMCA limits responsiblity for copyright violations where an ISP simply transmits information over the Internet - but to be protected by that limit, once notified of an alleged violation, unless a valid counter-notice is received the ISP must remove material from users' Web sites that appears to constitute the infringement. Further, Hostway's published terms of service permit it to terminate an account upon receipt of a facially valid DMCA notice: "Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at Hostway's sole discretion."

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