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Toyota Demands Removal of Fan Wallpapers

Soulskill posted more than 5 years ago | from the see-what-sticks dept.

Censorship 594

An anonymous reader writes "TorrentFreak reports that Toyota's lawyers have recently contacted computer wallpaper site Desktop Nexus in a blatant example of DMCA abuse. Toyota issued a blanket request to demand the immediate removal of all member-uploaded wallpapers featuring a Toyota, Lexus, or Scion vehicle (citing copyright violation), regardless of whether Toyota legally holds the copyright to the photos or not. When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."

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its just a car. (3, Interesting)

mcfatboy93 (1363705) | more than 5 years ago | (#25777111)

why do these things always happen like come on its a car. do you see these guys confiscating all pictures of their cars that you take on the high way. i think not.

Re:its just a car. (3, Interesting)

capnkr (1153623) | more than 5 years ago | (#25777205)

It's not just a car, it's a Scion , you insensitive, un-trendy clod!* ;)

*(...writes the recent EX owner of a Toyota, who really digs his 10 yr old Saturn SW2, that gets better gas mileage for $2K than most all of these over-hyped "green" cars... Hey, just saying!)

Re:its just a car. (1)

dnoyeb (547705) | more than 5 years ago | (#25777263)

The lawyers want to get paid. Damn whats good for the company. Typically, this gets cleaned up when some company execs get wind of it.

Re:its just a car. (4, Insightful)

davolfman (1245316) | more than 5 years ago | (#25777491)

The proper response? Bill Toyota right back for each and every takedown.

Re:its just a car. (4, Interesting)

Kagura (843695) | more than 5 years ago | (#25777697)

... he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."

My first reaction was, "What idiot laywers, no court would award them that. Maybe they hope that the website won't spend the money to fight them." But I thought about it for a few seconds, and if the onus is on the infringer to make sure that they are not infringing, then it makes sense for them to be billed.

I'm not saying it is the responsibility of the infringer to be sure they're not infringing, but if that's the case, then it's a little easier to see where this seemingly crazy statement actually came from.

Re:its just a car. (0, Redundant)

Kagura (843695) | more than 5 years ago | (#25777709)

I'm also not saying that Toyota is doing a good thing. They aren't, so don't get angry at me just because I posted as devil's advocate! ;)

Re:its just a car. (4, Insightful)

genner (694963) | more than 5 years ago | (#25777737)

... he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor."

My first reaction was, "What idiot laywers, no court would award them that. Maybe they hope that the website won't spend the money to fight them." But I thought about it for a few seconds, and if the onus is on the infringer to make sure that they are not infringing, then it makes sense for them to be billed. I'm not saying it is the responsibility of the infringer to be sure they're not infringing, but if that's the case, then it's a little easier to see where this seemingly crazy statement actually came from.

Except the site owner isn't the infringer and the DMCA makes sure they can not be treated as such.

Re:its just a car. (1)

Kagura (843695) | more than 5 years ago | (#25777767)

All I'm saying is that in a situation where an infringer should be the one to do extra work to make sure they are not infringing, that it makes sense for the rights owner to bill the infringer for a comprehensive list of infringements.

Re:its just a car. (1, Funny)

Anonymous Coward | more than 5 years ago | (#25777741)

why do these things always happen like come on its a car.

What an odd sentence.

those people are obviously freaks (0)

Anonymous Coward | more than 5 years ago | (#25777117)

So what if I take a picture of my own car and use it as my wallpaper?

Re:those people are obviously freaks (4, Funny)

ta bu shi da yu (687699) | more than 5 years ago | (#25777151)

You are stealing LIGHT, which is owned by Toyota, you copyright thief you!

What I'd like someone to do is to produce a DMCA takedown order for Toyota on a piece of clothing that is worn by an actor in one of Toyota's ads.

Re:those people are obviously freaks (5, Insightful)

Scutter (18425) | more than 5 years ago | (#25777167)

What I'd like someone to do is to produce a DMCA takedown order for Toyota on a piece of clothing that is worn by an actor in one of Toyota's ads.

It would be better to serve them an order to remove all ads containing clothes for copyright violation and then invoice them when they ask you to indicate which ads are violating copyright.

Re:those people are obviously freaks (1, Funny)

Anonymous Coward | more than 5 years ago | (#25777323)

If the ads feature beautiful female models, just remove the clothes and be done with it.

Re:those people are obviously freaks (3, Funny)

Teancum (67324) | more than 5 years ago | (#25777543)

You get served a notice by the FCC for operating an unlicensed device capable of receiving elements of the electro-magnetic spectrum. Who cares if this is a part of the "unregulated" section of the E/M spectrum.

Since there is a device that alters the E/M frequencies coming from this machine (aka the "paint" on the vehicle), you are in violation of other sections of the DMCA due to having an unauthorized device (the "camera") that circumvents the "anti-piracy" protection from obtaining the image in the first place.

just wow (5, Funny)

matto14 (593826) | more than 5 years ago | (#25777139)

damn just be happy that your customers are sooo happy with your products that they celebrate it with making a wallpaper to put on their computers. i bet that toyota's lawyers are summers eve fanboi's

In a related move Toyoda.... (5, Funny)

budword (680846) | more than 5 years ago | (#25777145)

In a related move, Toyoda has also served a DMCA take down notice to slashdot, demanding that all car related analogies be removed from comments by slashdot members.

Re:In a related move Toyoda.... (5, Funny)

budword (680846) | more than 5 years ago | (#25777161)

I apologise for the misspelling Toyota. Spell check didn't catch it, and all I can say in my defence is that I'm a star wars fan. Sorry.

Re:In a related move Toyoda.... (5, Interesting)

Anonymous Coward | more than 5 years ago | (#25777193)

Go look at the founder's name, then stop apologizing for the slip :D

Re:In a related move Toyoda.... (5, Interesting)

bhtooefr (649901) | more than 5 years ago | (#25777215)

Indeed - Toyota is actually an intentional misspelling, because of the number of strokes for the Japanese characters being luckier or something. It'd be like Henry Ford calling his company the Fort Motor Company, because the word sounded better.

Re:In a related move Toyoda.... (0)

Anonymous Coward | more than 5 years ago | (#25777443)

Wouldn't it be more like Henry Ford calling his company the Fort Motor Company because the word looked better?

Re:In a related move Toyoda.... (0)

Anonymous Coward | more than 5 years ago | (#25777507)

Or possibly more like Ford calling his company the Fort Motor Company because he's a Christian and the "T" resembles a cross.

Note that I've no idea if he's actually a Christian or not: it was just an example.

Re:In a related move Toyoda.... (2, Informative)

Anonymous Coward | more than 5 years ago | (#25777557)

Not entirely. The Japanese characters for "Toyota" and "Toyoda" are identical, and the pronunciation of the soft "da" or hard "ta" at the end do not have specific rules as to which is correct. (Note that this pertains to the family name only, as Toyota does not have a Kanji, or Chinese character if you will, name. It uses the phonetic Japanese Kana alphabet instead.)

The deal is that the company name comes from the founder's last name "Toyoda", but when put into a a Kana (phonetic alphabet) logo the trailing marks which give it the soft "da" sound looked a bit awkward. Since the Japanese take the pronunciation of their last names rather seriously (they WILL correct you if you mis-read the Kanji character, which does not specify soft or hard pronunciations as seen in this case), so it is not by surprise that the person that changed the name was not born into the family. (He was "adopted", married to Toyoda-san's daughter and adopted into the family roster in order to keep the Toyoda name heritage continued. Another typically Japanese thing to do.)

The 8 strokes part is more of an afterthought. It's just a cute extra to tag onto any naming scheme.

Re:In a related move Toyoda.... (2, Funny)

Anonymous Coward | more than 5 years ago | (#25777517)

To-Yoda: To use Jedi mind trick on innocent slashdot readers.

Re:In a related move Toyoda.... (0)

Anonymous Coward | more than 5 years ago | (#25777563)

There'd be nothing left

Re:In a related move Toyoda.... (0)

Anonymous Coward | more than 5 years ago | (#25777607)

I think I'm gong to bill Toyota for advertising on my car, you know, the name badge they place on every car.

Whats the point...? (5, Insightful)

Zathain Sicarius (1398033) | more than 5 years ago | (#25777147)

All you're doing is taking down free advertisements all around the world and giving yourself a bad name...

Whats the point...?-Free ads. (1)

Ostracus (1354233) | more than 5 years ago | (#25777243)

Obviously. But if this ever got as far as a court system. "But I'm doing free advertising for you" wouldn't be the successful argument that gets the case dismissed. To put it bluntly "Who asked you to?" would be the courts question. From a marketing standpoint you have a point. From a legal basis no.

Re:Whats the point...?-Free ads. (1)

Kristian T. (3958) | more than 5 years ago | (#25777541)

Yes and no. The courts have a fixation with "damages" (financial being the only kind they know of). If there are no damages, the court is unlikely to do much besides maybe order a few pictures be taken down.

Re:Whats the point...?-Free ads. (5, Informative)

Teancum (67324) | more than 5 years ago | (#25777601)

Still, until Toyota says "We own the copyright on image 11684.jpg, 11689.jpg" and mentioning other image explicitly on the website, all the site owner has to say is:

"We were not served a proper DMCA take-down notice, and as such we were unable to fill the request."

The judge would look at the invoice and throw the thing out. The DMCA notice has to be done in writing, be specific, and allow for a response if the copyright is being questioned or challenged. None of this is happening, and it would be Toyota that would have egg on its face if they really tried to follow through with this tactic.

Still, as far as the free advertising is concerned, once copyright is clearly established and can be legitimately claimed by Toyota, proper notices have been filed and the law has been followed, the images have to go.

Unless.... you are claiming "fair-use" privileges for the use of the image of the vehicle.... so the whole thing starts all over again in another round of legal maneuvering. Fair-use here might actually be valid, depending on who took the image and in what context it is being used.

Re:Whats the point...?-Free ads. (2, Insightful)

DRBivens (148931) | more than 5 years ago | (#25777755)

Yes, and there is something else many people seem to forget: An invoice does not necessarily indicate a debt owed.

In other words, "Invoice me all you want, you morons. I ain't gonna pay it!"

Sheesh...

Re:Whats the point...?-Free ads. (1)

Archon-X (264195) | more than 5 years ago | (#25777739)

..and ultimately, would you not buy a toyota, because of this stunt?
I highly doubt that this event would sway even the largest toyota fanboys.

Re:Whats the point...? Trademarks. (1)

betterunixthanunix (980855) | more than 5 years ago | (#25777681)

Toyota is probably trying to protect its trademarks. The USPTO would not renew Toyota's trademarks if Toyota did not actively work to prevent unauthorized uses of its trademarks. I did not hear anyone complain when Red Hat or Mozilla enforced their trademarks.

Yeahh (4, Interesting)

Davemania (580154) | more than 5 years ago | (#25777159)

Does that mean all the speeding camera are illegal ?

Re:Yeahh (0)

Anonymous Coward | more than 5 years ago | (#25777315)

Does that mean all the speeding camera are illegal ?

Do you mean they publish all speeding camera pictures?

Re:Yeahh (4, Funny)

deniable (76198) | more than 5 years ago | (#25777397)

No, but they 'distribute' or offer to share them with the offender and the RIAA has said that that's good enough.

Copyright = Intellectual Slavery (-1, Troll)

Anonymous Coward | more than 5 years ago | (#25777163)

Just another example of the fact that if you drink in all the lies about copyright, you are betraying your own freedom to think.

Re:Copyright = Intellectual Slavery (0)

Anonymous Coward | more than 5 years ago | (#25777611)

hell yeah

Toyota and Sony. (4, Insightful)

Sun.Jedi (1280674) | more than 5 years ago | (#25777165)

Is any more evidence required for average people to avoid these 'too large for their own common sense' companies?

Re:Toyota and Sony. (1)

wjh31 (1372867) | more than 5 years ago | (#25777173)

the problem is i drive a toyota yaris and its actually a pretty good car...

Re:Toyota and Sony. (1, Funny)

Anonymous Coward | more than 5 years ago | (#25777293)

The problem is that you think it is.

Re:Toyota and Sony. (1)

lysergic.acid (845423) | more than 5 years ago | (#25777735)

i feel similarly about my PSP. it's a great PMP and gaming console, which is a real testament to the skill & ability of Sony's engineering and product design departments, but unfortunately all of this is being undermined by Sony's utterly incompetent corporate leadership.

at least Toyota's BS doesn't affect the use of your car. the PSP on the other hand, while technically impressive in terms of hardware, has from its inception suffered from gross mismanagement and crippling software as a result thereof. not only that, but Sony continuously insults their most loyal customers with outrageous anti-consumer policies and management decisions.

Pathetic (5, Insightful)

GFree678 (1363845) | more than 5 years ago | (#25777171)

Directly attacking the fans who are providing free advertising of your product is about as stupid as it gets.

Re:Pathetic (1)

Threni (635302) | more than 5 years ago | (#25777307)

If you don't protect your trademarks then under certain jurisdictions (I believe the US is one of them) you lose the right to protection at all. This is why Infocom's New Zork Times had to change, even though there's zero chance of anyone with a clue confusing the two. Just the way the law is - if you don't like that (and assuming Toyota is using the DMCA as a mechanism to protect their trademarks) - then you're criticizing the wrong people.

Re:Pathetic (4, Insightful)

DarkOx (621550) | more than 5 years ago | (#25777411)

I would argue that protecting ones trademarks and copyrights would include taking the time to file specific and correct DMCA requests even if that meant enumeration what items you were interested in for the requestee. It would be like me knocking on my neighbors door and saying

Dude I know some of the stuff in your yard can't possibly be allowed by our community bylaws. Can you please go research them and get back to me, then naturally you will have to get compliant.

It seems to me if I have an problem with something someone else is doing it falls to me to at least identify what that is in a specific an actionable way and determine if its at least reasonably possible I have the force of law on my side before I bother them or a court with my complaint.

Re:Pathetic (0)

Anonymous Coward | more than 5 years ago | (#25777665)

I would argue that protecting ones trademarks and copyrights would include taking the time to file specific and correct DMCA requests

The DMCA has nothing to do with trademarks. What the hell is the matter with you people?

Re:Pathetic (2, Insightful)

deniable (76198) | more than 5 years ago | (#25777423)

Protect the trademarks against use in trade or against genericisation. Taking your idea to extremes, every Toyota car in a news article, ad, movie or anything else would be a trademark case for Toyota. Another thing, the story is about copyright, not trademark. Toyota would have to do real work for a trademark claim.

Re:Pathetic (4, Insightful)

Teancum (67324) | more than 5 years ago | (#25777483)

This isn't about trademarks here. The website owner isn't (yet) disputing the use of the trademark, nor is the website owner attempt to sell a similar product (aka an automobile) using that trademark.

Yes, trademarks have to be defended according to U.S. law, but there isn't a trademark infringement going on here.

Besides, the DCMA doesn't cover trademark usage... it only applies to the use of copyright.

The issue with the "New Zork Times" is that the "New York Times" certainly does sound similar, and the purpose of the "New Zork Times" was for something "related" to journalism... aka it was for a similar product. Branding is important, and Infocom in this case tried to make the "newspaper" appear in a format similar to the better known commercial organization as well. Again, this doesn't relate to the above incident.

Trademarks aren't copyright protected. The form and styling of the vehicle, however, might be considered a "work of art" and as such have tertiary copyright status such as when you attempt to take a photo of a statue or other 3-D work of art. It depends largely on the context, but clearly this website is using the vehicle as the focus of the image and it certainly could be argued that the vehicles are being admired as works of art. As they should be in many cases.

Some (not all) of the images also appear to be from official Toyota publications and/or photographers hired under contract by Toyota. The copyright status of these images is much more clear-cut.

Still, there is no reason to even comply (or even respond) to letters or notices that don't give specifics regarding what images are out of compliance and what aspect of the copyright status is being asserted here. They can't just ask you to shut down your website.

It is even more insane to shoot the fans here, who are hyping up and adding "buzz" to their products. This is "free" advertising of the kind that most marketing groups salivate over and only could wish they could get. The lawyer/marketing genius needs to get fired by Toyota for even considering the thought of going after these guys.

If the website was offering images of Toyota cars blowing up, in crashes, covered with blood, or appearing in a negative light, that could be something more of a concern. Instead, they (Toyota) should be grateful that they aren't being charged for this "service". Heck, their P.R. guys should be uploading more photos to this website.... particularly after this has received some huge attention through slashdotting and other blog posts.

Re:Pathetic (2, Interesting)

Yarcofin (1397091) | more than 5 years ago | (#25777375)

The YMCA initially tried suing The Village People for the song "YMCA". Probably the best publicity it ever got. Shows you how smart corporations are...

Re:Pathetic (2, Interesting)

Like2Byte (542992) | more than 5 years ago | (#25777693)

Has anyone stopped to consider that Toyota is doing this on purpose *because* they are aware of the Streisand Effect and they are now moving into viral-marketing to save their sales during this economic downturn?

The path is clear. (4, Insightful)

MostAwesomeDude (980382) | more than 5 years ago | (#25777191)

Ignore the notice. It's clearly not properly formed, and should provide great evidence, should Toyota decide to start suing this guy.

Will Fail (5, Informative)

markdavis (642305) | more than 5 years ago | (#25777199)

I remember reading about similar "cases" in the past, although they were not DMCA related. Anyway, the courts threw out the plaintiffs because the items being photographed were not considered "art". Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.

Toyota could only be right if the images they specify were TAKEN BY TOYOTA. And that could be difficult to prove. If they claim ALL the images on the site belong to them and the operators of the site KNOW that some/all/most of the pictures were not taken by Toyota, then I think the whole request is bogus.

Yet another example of abuse of the legal system. If it ever makes it to court, I would hope the site operators counter-sue and win BIG. But I think that is the whole point- such cases rarely make it to court, big businesses just use the DMCA as a weapon to scare smaller entities into complying.

Re:Will Fail (1)

bhtooefr (649901) | more than 5 years ago | (#25777223)

The issue is, there are mass-produced automobiles that either are considered art, or have components that are considered art - IIRC, a 1st-gen Mazda Miata's tail light is in the New York Museum of Modern Art.

Re:Will Fail (5, Informative)

cpt kangarooski (3773) | more than 5 years ago | (#25777371)

Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.

What has that got to do with anything?

Mass production doesn't matter, nor does uniqueness. While some, including myself, might want authorial intention to be relevant, it currently doesn't matter. And what it was sold as doesn't matter.

What it boils down to is that the manufacturer can claim that the parts of the car photographed are copyrighted works, most likely sculptural works (most cars don't seem to come from the manufacturer with pictures painted on them). The counterargument is that copyright excludes the useful portions of sculptural works, and where the useful and non-useful portions are inseparable, the entire work is excluded. This is the utility doctrine. There are numerous tests for determining whether or not various features are separable, most likely because no one has ever managed to come up with a sufficiently good test for people to rally around, and it's all largely based on rationalizing gut instinct.

One noteworthy example of the utility doctrine being used was in Brandir [altlaw.org], where the creator of those undulating bike racks [ribbonrack.net] tried to get a copyright because he had forgotten to get any kind of patent before the deadline for applying for a patent expired. IIRC, he lost, and anyone can make those racks.

Re:Will Fail (5, Interesting)

timeOday (582209) | more than 5 years ago | (#25777439)

Toyota could only be right if the images they specify were TAKEN BY TOYOTA.

What is what makes this sentence in the article so bizarre: "The site's owner, Harry Maugans contacted Toyota to clarify. He was told that all images featuring Toyota vehicles should be removed, even images with copyright belonging to others." If that sentence is true, Toyota is admitting it does not hold the copyright to others' images of Toyotas, yet still claiming the right to control copying!

Bill and bill alike. (5, Interesting)

Ostracus (1354233) | more than 5 years ago | (#25777213)

" When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor.""

And then he invoices Toyota for complying with each and everyone of them to the tune of the same dollar amount their bill is. Two can play this game.

Re:Bill and bill alike. (1)

commander_gallium (906728) | more than 5 years ago | (#25777295)

Better yet, he should take down the images, but bill Toyota for the "labor" (after all, he has to figure out which images contain Toyotas). Then he just needs to file the counter-takedown paperwork, and put all of the images back up.

I would stonewall (0)

Anonymous Coward | more than 5 years ago | (#25777471)

I would respond with, "I am investigating and will take down any non compliant images."

Then do nothing until I'm taken to court. When in court, tell the judge what the Plaintiff threatened me with a large bill to comply with the DMCA and they themselves didn't comply for not specify the images - or whatever. When I say 'I', I mean whatever my own sharpie, JD says.

Then again, I may have to take it up the ass.

Re:I would stonewall (1)

burris (122191) | more than 5 years ago | (#25777713)

If you receive properly formatted DMCA takedown requests then you have to comply with them in the amount of time specified in the statute if you want to get safe harbor.

Re:Bill and bill alike. (1)

DynaSoar (714234) | more than 5 years ago | (#25777759)

> And then he invoices Toyota for complying with
> each and everyone of them to the tune of the
> same dollar amount their bill is.

And each of the owners bill Toyota for the labor of removing them. And then they bill Toyota for a new non-Toyota car, since theirs can't be publicly viewed. Yeah, I know not all the wall papers were by owners, but if just those owners did this, it'd get Toyota's attention.

And send the invoices to someplace in Toyota other than the legal department. This smells like another case of Lawyers Gone Wild. I'll bet the PR department would have a hissy fit if they started getting invoices with copies of the take down request, and they'd go into overdrive on damage control, then call in the guys in the top floor offices. I'm betting they big wigs either don't know, or else were fed a line by legal and will cave at the first sign of backlash.

...If this were a car... (1, Redundant)

erroneus (253617) | more than 5 years ago | (#25777235)

...oh wait... this is about cars. Now how can I make a traditional parallel with cars when this is already about cars?

Damn the luck.

More likely a trademark infringement notice (4, Informative)

codegen (103601) | more than 5 years ago | (#25777253)

The article referenced in the main post is light on details, but this is probably not a copyright notice. It is more likely a trademark notice and/or a trade dress notice. The same issue has been discussed back in January in a post about article [slashdot.org] Ford calendars. Back then, the calendar was for fund raising for a not for profit entity,and there may have been an argument that there was a loophole in trademark law. In this case, the images are being distributed for profit (the site caries advertising). If it is not copyright, then a DMCA notice would not be appropriate and a more general lawsuit would be the only remedy.

Re:More likely a trademark infringement notice (1)

Teancum (67324) | more than 5 years ago | (#25777367)

The status of being a non-profit or not has no relevance with the DMCA. It applies to what network "hosts" have to do in order to comply with copyright laws in regards to electronic communications.

In other words, the DMCA notice is certainly appropriate in this circumstance, given the nature of the request (to remove images from a website). There are additional provisions where either the person uploading the image or the web hosting service to protest the removal and gets into a larger legal challenge for both those demanding the take down as well as for the "web host". The site operator certainly can't just remove these images without a formal DMCA notification without getting himself into a whole lot of legal trouble.

These images do seem to be posted by 3rd party individuals. These 3rd party uploaders are the ones that could put this website operator into a real bind here, forcing the need for formal DMCA take-down notices.

Re:More likely a trademark infringement notice (1)

codegen (103601) | more than 5 years ago | (#25777553)

If you had actually read my post, you would have noticed that I speculated that it might be a trademark or trade dress infringement notice. Now it may be that Toyota is overreaching itself even on trademark law. We don't know because there are very little details. But it still remains that the DMCA only covers copyright. Futhermore, the safe harbour of responding to a DMCA notice only applies to copyright. I cannot send you a DMCA notice for something which I do not own the copyright. Looking at the actual site it not clear that copyright on the images belong to Toyota (some look like magazine photos).

A DMCA notice is not appropriate for all cases of removing an image from a website, only for those cases where it a matter of copyright infringement. So if Toyota is claiming trademark or trade dress (which we don't know), then a DMCA notice does not apply. This may be why it was not formatted as a proper DMCA notice. The site operator may be confusing a more general legal letter with a DMCA notice. Now if Toyota is claiming that it is all Toyota marketing material and claiming copyright, then they have to send a proper formatted DMCA notice.

Second if you are distributing material that infringes on trademark, you are liable under current US law, even if you or some third party owns the copyright. So if it is a trademark notice, then the site operator is already be in a whole lot of legal trouble already. I agree with you that the 3rd party uploaders may have put the site in this situation.

Invoice won't fly (4, Interesting)

tonyray (215820) | more than 5 years ago | (#25777259)

If they receive a proper DMCA notice and remove the offending files then they have no further liability under the law. Toyota is blowing smoke; this is just a typical lawyer scare tactic that has no basis in law.

Actually, Toyota could be the one billed should Desktop Nexus comply. By demanding that Desktop Nexus identify for Toyota the offending files, one might argue that Toyota was hiring them as a contractor to fulfill Toyota's obligation under the DMCA. To cover themselves, Desktop Nexus should send a proposal to Toyota offering to identify and remove the offending photos, to the best of their ability (thus not guaranteeing to find them all), for, say, $1000 each.

Invoices mean nothing (4, Insightful)

Teancum (67324) | more than 5 years ago | (#25777261)

Just because somebody sends you an invoice doesn't mean that you have to pay it.

This, in fact, is a common scam technique, where somebody will send to a small business some sort of random invoice (sometimes to larger businesses) demanding payment for some random "service" that has been provided.

They (Toyota) should know full well that if they actually take legal action to collect on these invoices, that they would be thrown out of court.

But of course that does mean you have to appear in court (often not in a convenient venue) and defend why you have refused to pay on the bill if you are refusing payment.... and you have to give formal notice to the person submitting the invoice that you dispute the terms of service.

Still, if I were running this website, I would refuse payment as the DCMA is quite clear about what the law is here in terms of legal requirements to take down photos or "copyrighted content".

At the same time, who "owns the copyright" on a picture of a Lexis or other vehicle is something that can be debated in court. Yes, the photographer who made the image in the first place has rights, as does the property owner (if it wasn't in a "public" place). The physical structure of the vehicle itself can also be considered "a work of art"... which is what I guess Toyota is trying to do here. So yeah, they do have a slight point even if Toyota didn't physically take the photo.

Still, this is a P.R. nightmare and something most companies don't want to either bother with or are usually tickled that somebody is promoting their product over and above their competitors. Frankly, rather than demanding a take-down of the pictures, they ought to be sending professionally looking pictures with full republication and distribution rights granted.

Re:Invoices mean nothing (1)

deniable (76198) | more than 5 years ago | (#25777447)

In some places, sending a fake invoice can invoke fraud laws.

Re:Invoices mean nothing (1)

Teancum (67324) | more than 5 years ago | (#25777705)

Having been the recipient of some of these "fake invoices", even that is hard to press. It gets real grey and fuzzy with the law here. I have demanded to know from some companies specific details about what it is that I'm being charged with and to know what service was being provided. Some medical billing can get rather vague... where one company billed me something like eight months after I went to an emergency room for treatment, when I already paid the hospital and the physician who treated me, as well as the radiologist in three separate previous billings. I could go on here, but sometimes you might actually owe the money, and perhaps you don't. It can be hard to know when you must pay a bill.

Regardless, fraud laws are a criminal statue that requires the involvement of a state attorney general or at least a government prosecutor of some sort willing to step in and help you out. While some of these prosecutors are willing to step in and offer some good advise, often they don't really have the time available to go into specifics unless the fraud is rather clear-cut and blatantly trying to be malicious. Or more importantly, if you haven't paid the bill, they (the prosecutors) won't do anything at all (usually).

Even more strangely, a company that bills you for services that you never received or requested can still hit your credit ratings for failure to make payments on those bills. That can and sometimes does negatively impact your credit scores, regardless of any "comment" that you can put onto your credit report denoting fraud. If anything, noting that the billing was fraud makes you look even worse to creditors.

Toyota has no legal case (5, Insightful)

denobug (753200) | more than 5 years ago | (#25777305)

If they cannot point out the specific photos they own copyrights with, Nexus does not have to comply out of obscurity of the notice. Simple as that. Try to bring that to court Toyota!

While we're at this spread the word to all major news network and let them broadcast the clip for a few minutes in evening news (or better yet, put that in the Morning section of Headline News). Let's see who is the ultimate winner here.

O boy (4, Funny)

tsa (15680) | more than 5 years ago | (#25777335)

What a hideous crimes people commit these days. Poor Toyota, they must have lost millions of dollars because of these wallpapers. I mean, publishing a song on the internet, ok, it's bad, but a whole car?! Don't these people have any sympathy for a poor carmaker?

Re:O boy (0)

Anonymous Coward | more than 5 years ago | (#25777503)

Toyota is just trying to help fight Chronic Automobile Masturbation Syndrome.

It's observed in those that jerk off to their cars more than they do to women.

Stop Car Porn Now! Even Pedobear approves of this message.

Pedobear prefers to walk over driving when possible.

Will my next car be a Lexus? (3, Interesting)

flajann (658201) | more than 5 years ago | (#25777339)

I've owned a Lexus -- the ES 300 -- for 10 years now and am very happy with how that car has held up. As a result, I've become a die-hard Lexus/Toyota fan, and my next purchase was planned to be the Lexus hybrid model.

However, in lieu of Toyota's errant behavior and its refusal to keep its lawyers in check for something that only promotes their product, I might consider making my next purchase with one of their competitors instead.

I would that that, especially in these tumultuous financial down-times, that Toyota and other companies like them would rather enhance their customer loyalty base rather than diminish it.

So, Toyota, kudos for a great product line, but a thumbs down on your PR with your loyal customers.

Re:Will my next car be a Lexus? (3, Insightful)

berend botje (1401731) | more than 5 years ago | (#25777501)

Don't tell us, tell the board members of Toyota. Write a polite, well formed letter expressing your above stated concern. Your letter won't make a difference. My letter won't either. But when they get enough of those, the idiots responsible for this fiasco will be found and taken out of the loop.

Throw them DMCA taken down notice... (1)

sam0737 (648914) | more than 5 years ago | (#25777363)

If Toyata has a user contributed forum or guestbook of some sort hosted somewhere, someone should just post random copyrighted material (both text and graphics to make it harder to filter) on their site and throw them the take down notice...

Invoice for labor (1)

jsse (254124) | more than 5 years ago | (#25777393)

When site owner Harry Maugans requested clarification on exactly which wallpapers were copyrighted by Toyota, he was told that for them to cite specifics (in order to file proper DMCA Takedown Notices), they would invoice Desktop Nexus for their labor.

Harry should really consult his lawyer before making request.

It was him who asked for clarification. In some circumstance Toyota could really request payback.

I suggest Harry to comply, and send an invoice to Toyota for his labor, and it happens that Harry's labor is very expensive, say 1 million/hr...

Re:Invoice for labor (1)

Snorpus (566772) | more than 5 years ago | (#25777469)

But if Toyota doesn't specify which wallpapers are allegedly in violation, can't Harry just ignore the takedown request, since the request doesn't comply with the DMCA?

Re:Invoice for labor (1)

jsse (254124) | more than 5 years ago | (#25777667)

But if Toyota doesn't specify which wallpapers are allegedly in violation, can't Harry just ignore the takedown request, since the request doesn't comply with the DMCA?

Yes he could. The problem is that Harry didn't ignore it, but responded to it. Toyota's lawyers have full right to claim for damage as a result of his 'request'(if the case is going to be proceeded, that is)

DMCA broadly covers not just "Anti-circumvention exemptions", but even "Vessel Hull Design Protection Act". Therefore, there's chance that the wallpapers might violate one of two in it.

Can they actually bill for this? (4, Interesting)

MrLint (519792) | more than 5 years ago | (#25777421)

I thought that a DMCA notice *required* actual specifics of infringing content. Its part of what you have to do when you file a notice. Claiming that your are going to force someone to pay you so that you have to comply with the law seems patently (no pun intended) ridiculous. If your client wants this action done, they pay you (the lawyer) to do what is necessary.

I get the feeling that the mere fact that they refuse to follow the rules without trying to extort money from the 'defendant', will get them a well deserved legal slap in the face

Shitty cars (0, Flamebait)

Anonymous Coward | more than 5 years ago | (#25777429)

Desktop Nexus really should remove all wallpapers featuring Toyotas, these are shitty cars which shouldn't have been allowed in desktop wallpapers in the first place.

Toyota:Overhyped, overpriced junk (0)

Anonymous Coward | more than 5 years ago | (#25777457)

And now they have given another reason never to even consider owning one.

Thinking of it right now? (0)

Anonymous Coward | more than 5 years ago | (#25777489)

Right now, hundreds/thousands of /.ers are picturing what said Toyota's look like in their mind.

As Toyota's lawyers prepare to sue them as well for using an illegal mental image.

Prepare to have your minds-eye DCMA'd.

not a DMCA notice (4, Informative)

Laebshade (643478) | more than 5 years ago | (#25777567)

At least not according to the article [torrentfreak.com]:

Yet, Toyota has also been cagey. These demands have not been sent in the form of a DMCA notice.

This makes the next choice of car easier (1)

bailey86 (1049254) | more than 5 years ago | (#25777595)

This makes the next choice of car easier. Last time I asked my Dad (retired) to research a new car for us. The only specs I laid down were: Estate (shooting brake) Air-con. This will be changed to: Estate (shooting brake) Air-con. Not a Toyota or Lexus. When will these companies learn to muzzle their stupid lawyers?

Send it to the courts (1)

forrie (695122) | more than 5 years ago | (#25777649)

I would think it incumbent upon Toyota to specify the alleged infringing work, otherwise I would side with many of the remarks here.

Risky, though if I were the webmaster I'd try to get some legal assistance. I'd take down what was obvious, document this fact; then perhaps counter sue.

Places like Youtube are good examples here, a company sends a DMCA take-down notice, with a specific example. Unfortunately, it seems Youtube (or anyone else) doesn't always bother to verify, they just do it. But imagine if Toyota told Youtube they had to take down all videos of "x" or else. I'm sure that would fly like a fart in church.

And really, at the end of the day, where is Toyota being "hurt" by this. Having one of their cars on your desktop, etc., is free advertising for them, to some degree.

only in America (0)

Anonymous Coward | more than 5 years ago | (#25777691)

lol

I see the problem... (2, Insightful)

MobyDisk (75490) | more than 5 years ago | (#25777707)

The difficulty here is that some of those wallpapers might have official Toyota photos that have been airbrushed or had something added. That would make them derivative works, and they would be under Toyota's copyright. But there is no way for the site owner to know that. And if Toyota won't tell him which ones, then he is kinda stuck.

Legal question here: Is the site owner safe under DMCA safe harbor? He hasn't received a DMCA request, and he isn't advertising or selling the images. He is just a content provider. What if the owner puts a check box during the upload process saying "[ ] I certify that this image is copyrighted by USERNAME and is not created from any copyrighted works" and someone lies?

I know Wikipedia handles this by having a big paragraph about copyright when images are uploaded, and when you click on the image you see that boilerplate.

Not DMCA. Maybe trademark? (1)

John Hasler (414242) | more than 5 years ago | (#25777717)

> At the end of the day, the best question is that asked by Mr Maugans, "Has DMCA abuse
> really gotten this bad?"

How can you call this DMCA abuse when the article clearly states that Toyota has not sent DMCA takedown notices? Are they really alleging copyright infringement or is it trademark they are exercised about? The DMCA does not apply to the latter.

I'm not a lawyer, but I think the law is fairly clear. The provider can ignore copyright infringement C&D notices that are not in the proper form. As for the cost of a lawsuit, Toyota would certainly run up a substantial tab, but for the defendant there's pro-bono work, the EFF, legal defense funds, and, of course, counter-claims.

IANAL, but I've had a related request made... (3, Interesting)

Overzeetop (214511) | more than 5 years ago | (#25777719)

It is the responsibility of the site owner to be able to verify the copyright ownership or licensing status of every image/piece of content on his site.

I had (have) a site which my webmaster created with what she thought was licensed content. A popular image licensing firm sent her a notice to take down certain images and pay blackmail money^W^W restitution or they would take her to court. She took the images down and they settled; she asked them if there were any other images so that she could make sure she didn't have future liability. Two years later, I got a similar notice, with demands. My legal council (which cost nearly 30% of the amount they wanted, which was in turn about 10x the value of the images used based on their own catalog) who does happen to be an expert in IP law, basically told me I was screwed, and to pony up a check or be looking at 5 to 6 figures of litigation.

My old webmaster was kind enough to call them up and negotiate about a 20% reduction in the settlement on my behalf.

The moral of the story is this: If he has infringing content on his site, it is irrelevant whether or not they identify every piece. He has to be able to provide proof of license for every file he has. If he cannot, then he needs to take the images down or face possible ruin in court. This is the hidden failure of the system - there are so many regulations that it is impossible for a small business person to create a startup and know the implications, and ignorance is no defense. I feel for him, but he is (presuming he has actual unlicensed material) effectively screwed.

Toyota lawyer to boss.. (1)

dgun (1056422) | more than 5 years ago | (#25777763)

"Maybe there is something on the internet we can bill our clients for."
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