A blog and forum site called DemandStudiosSucks.com has been threatened with legal action by Demand Media, the company behind Demand Studios. The letter the site received has been posted on the site itself. In it, Demand Media’s legal department says:
Demand Media possesses valuable trademark rights in the Demand Media trademark and holds trademark registrations for Demand Media in numerous jurisdictions across the world. Demand Media is also the copyright holder of the DemandMedia.com website located at www.demandmedia.com, as well as the copyright holder of all content on Demand Media owned and operated sites, including eHow.com and LiveStrong.com.
It has been brought to our attention that you have wrongfully created and maintain a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests, as well as other confidential and proprietary Demand Media information (specifically, in the form of an internal presentation regarding the company’s business plans.)
The letter points to a couple of links on the site that contained “content at issue”. The content on one of them has been pulled. The other one is a critique of the quality on Demand Media’s eHow site repurposes some advice from eHow itself on how to evaluate quality. A snippet from the article which uses that says:
Did you ever stop and think why Demand Media has to rely so heavily on Google? Could it be because there are no advertisers who willingly want to attach their brand to the quality of merch that Demand Studios is selling on eHow?
The quality of the content on Demand Media’s primary property — eHow — is mediocre at best. It tops out at average. I would throw my own output into that category. Here’s why: Demand Media gets what they pay for. They want to pay $7.50, $15, $17.50, $20 per piece, and I am going to deliver quick and slapdash work in a manner that maximizes my output and efficiency and games the system to ensure it gets through. A writer’s economic strategy is no different than Demand Media’s.
Keep in mind this post is from January, before the company went public and before the Google Panda update. A lot has happened surrounding Demand Media and eHow since then. That includes an initiative to clean up the quality of eHow content, including but not limited to the removal of some content.
However, as Jeff Bercovici at Forbes notes, this letter to Demand Studios Sucks comes as Demand Media’s mart cap fell below a billion dollars for the first time since it went public. The company’s next earnings call is scheduled for August 9. In the last one, the company acknowledged the impact it felt from Google’s Panda update, noting that eHow’s search referrals declined by 20% as a result of it.
Patrick O’Doare at Demand Media Studios Sucks crafted a response with the aid of his legal team. In it, he says the site is consulting with legal advisors and the Electronic Frontier Foundation, which has been instrumental in defending fair use (see Righthaven cases). In the response, O’Doare writes:
In deference to your claims, but without acknowledging wrongdoing or infringement, we have — for the time being — removed all images and allegedly infringing material from the forum post referenced in your request….
With regard to the blog post…we assert, without equivocation, that this content falls well within the commentary and critique provisions of the fair use doctrine. Let’s be honest – if ever there was a case of unequivocal fair use, this would be it. The image in question was presented publicly as part of the Demand Media retail roadshow in advance of the company’s initial public offering. Although you may deem this material to be an “internal presentation regarding the company’s business plans,” it was — in fact — presented to the public on multiple occasions during the runup to the company IPO and purportedly after. Any alleged trademark infringement due to this image is incidental and also subject to the unequivocal commentary and critique provisions of fair use. Furthermore, as I’m sure you are aware, alleged trademark infringement is not subject to the provisions of the DMCA.
Should Demand Media continue to pursue this spurious claim, we are prepared to defend ourselves to the fullest extent allowed by law. Please keep in mind that Section 512(f) of the DMCA creates liability for knowingly making false claims in a DMCA takedown notice. See 17 U.S.C. § 512(f). Your lack of proper consideration of the protections of fair use doctrine could well serve to the court as evidence of bad faith on behalf of Demand Media and subject your company to such liability.
You can read the whole thing here.