Posts tagged ‘copyright’


Pirates must love GoDaddy

04.03.2023

If you are a pirate, then GoDaddy seems to be the place to host.

Last November, we spotted three stolen articles on the sephari.co.nz domain, which appears to be hosted by GoDaddy. I filed two DMCA notices, to no avail.

They were in the standard format, one that GoDaddy requests and has acted on in the past.

The only thing I got back was this:

Your claim was received and will be reviewed and processed in the order that it was received. There is no need to submit the claim again. Thank you.
 
Kindest Regards,
 
D Preston
Go Daddy | Trademark & Copyright Claims

Come March and the articles are still there. So I filed another. Here is the body of the letter:

It appears that a GoDaddy customer has taken our work without permission. The infringing pages may be found at:
 
http://sephari.co.nz/museums/royal-new-zealand-ballet-debuts-12-works-digitally-on-may-12-lucire-lucire/
http://sephari.co.nz/culture/hands-on-in-the-midwest-lucire/
http://sephari.co.nz/culture/travel-in-brief-dining-with-vistajet-indonesian-celebrations-holland-americas-150th-lucire-lucire/
 
The originals of the above items are located at the following URLs:
 
https://lucire.com/insider/20220504/royal-new-zealand-ballet-debuts-12-works-digitally-on-may-12/
https://lucire.com/2022/1014vo0.shtml
https://lucire.com/insider/20221120/travel-in-brief-dining-with-vistajet-indonesian-celebrations-holland-americas-150th/

 

There is no contact point for this client, so we have come directly to you.

We do not believe that the unauthorized publication of our work can be defended under the fair use doctrine nor has it been licensed under Creative Commons. Its publication does not serve public policy. It is our copyrighted work, and we have never given permission for this party to feature it.

I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).

I hereby state that the information in this notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.

I see D. Preston is on the case again. Here is what they said:

Dear Sir or Madam,
 
The website jyanet.com is not hosted by GoDaddy. We ask that you please note the following information:
 
The REGISTRAR is the company that sells a domain name registration to a person or company.
The REGISTRANT is the person or company that purchases a domain name for use.
The HOSTING PROVIDER is the company that provides space on it’s computers for the files that make up the content of the website.

That’s right. They’re telling me that my own company’s website is not hosted by them.

A website that does not appear anywhere in the complaint except for under my signature and in the reply address.

The rest is all mansplainy bollocks that says I should approach my own hosting provider to complain about myself.

I don’t know if they are illiterate, incompetent, obtuse, or overwhelmed.

But a pirate would simply love having a host that will run interference for them.

I wrote back:

Dear D. Preston:
 
Please read my complaint. Jyanet.com is not at issue here and I know you do not host it—as this is our company’s domain name.

It is not even mentioned in the attachment (which I am re-attaching): why would I file a complaint against ourselves?

The only place jyanet.com is mentioned is in my reply address.

Now, as in November when we filed our first DMCA notices with you, the complaint is about sephari.co.nz, which, based on our research, is hosted by you.

This has gone on for months.

I know the difference between registrar, registrant and hosting provider.

You were sent a standard letter in the format that you requested. A format that GoDaddy has acted on successfully before, not to mention other hosts.

I respectfully request you act on this copyright breach.

It’s not all doom and gloom. I had some fun with a couple of these people who hotlinked our images, while stealing the articles or spinning them.
 


 
Update, March 24: Finally a resolution, which coincidentally arrived at the same time I was asking connections on Mastodon to check if the domain was down. This took four months.
 


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Marking galleries private today

18.01.2023

Along came Copytrack again yesterday, identifying an image that they allege we stole and put on Lucire’s website. And once again I had to go back through old emails—only 11 years this time, not 13 like the last—to retrieve the email to prove that I had the correct licence to publish it, and that and the download page where I got it (it’s one of the most famous fashion labels in the world and knowing their budgets, they’ve paid for press). You wonder why they don’t whitelist legitimate publications.

It’s all very well for them to use their automated systems but I have to get the DVD archive manually. I’m just incredibly fortunate that I’ve kept every email since the 1990s.

On that note, I’ve marked most of the gallery entries on this blog as private today. Pretty much every image in the gallery I know to be either licensed for press use or is a publicity pic. But some have come via social media. I simply recognized them to be the press images because I have a photographic memory, and, for fun, I’ve added them to the gallery. Even though legally I have numerous defences, and I’m pretty sure I’d prevail in case of any legal claim, for a personal blog it’s just too much of a hassle when these so-called copyright services come knocking. I’ll do the hunt for work but I’m not being paid to blog. I know a lot of you enjoyed those gallery posts but they’re going to be pretty limited moving forward.

There are plenty of nice pics at Lucire—feel free to pop by there for a gander.


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When reverse image search services allege you’ve stolen work

23.12.2022

I think these are going to get more frequent. We received another copyright claim, accusing us of publishing a photograph without authorization. They wanted around €500, part of that for the licence, and part of that for running it since 2009.

This one, from a German company, was easier to deal with than an American firm that approached us with a similar accusation some years back, using the same tactic of including a pro forma invoice in the body of the email. I don’t remember the US firm’s name, and right now I’m not comfortable revealing the German firm’s since I’m still checking to see how legitimate they are.

I remember the Americans dragging it out over days, never answering the substantive parts of my legal arguments—gaslighting is part of their intimidation tactics. They wanted me to cough up, citing sections from our Copyright Act—an act which I knew better than they did and how the sections actually operated.

Their last email was citing one section which I knew they would fail on if they were to go to court, so I said, ‘You already have my response.’

They never actioned any lawsuit and I felt the whole thing was a scam. The way the American was avoiding getting to the core of the argument and not understanding commercial law (which could come into it as well as copyright law) told me as much.

Of course the image at issue was used legitimately, but in this case I didn’t have any evidence where it was from. All I knew were our procedures.

I never let on I had a law degree and he was emailing our main work email, so he never saw my signature file with my qualifications.

In this latest case, the approach was a little softer. In addition, things were a lot clearer, since I recall how we came to run the allegedly pirated photo of a Coty perfume: it came via a press release.

The beauty of having used Eudora as my email program—and still using it 27 years later—is being able to grab old mailboxes and load them up again.

And there it was, the press release from October 2009 in the inbox—twice, in fact, one sent to a former editor and one to our general media wire address. In there was the download link, which, happily, made it into the Internet Archive so I could confirm for myself that that was the source.

This German company had an online process where you could feed your evidence and details of your licence. I provided one of the releases and fed in the name and company of the person responsible. One of the companies was Coty, Inc., whom I very much doubt would not have made sure we in the press were covered.

In the message field I advised that if there were a claim for costs, they should approach Coty, Inc. and Coty SAS—all the while knowing that they would have secured the necessary licence.

Tonight, the German company emailed to say they would not pursue the claim further, which was a speedy resolution—but I wonder if they will continue going after people who got their image the same way but not having records stretch back that far. If they are con merchants, they will. If they’re legitimate and professional, they won’t.

A few things strike me here. The first is the timing: sending out on December 21 and demanding a reply by December 28. There’ll be offices that aren’t working through the Christmas break.

Secondly, my memory is that pro forma invoices, as far as New Zealand is concerned, are illegal. I can also think of them breaching other legislation. (N.B.: this blog post doesn’t constitute legal advice.)

Thirdly, will everyone still have their 2009 emails and will the Internet Archive have found the download link to spider? Unlikely—and this makes it unfair on the publisher.

Fourthly, I would say this claim falls outside the Limitation Act.

Don’t get me wrong: I believe photographers, indeed any author within the meaning of the Copyright Act, should be rewarded for their work. We send out DMCA notices a lot—but only after we have written a velvet-gloved email to the publisher or a comment on their blog.

I’ve even toyed with using such services ourselves over a series of articles, some hosted by Go Daddy who seems reluctant to have their customer remove them.

I would only consider them if I can identify the parties who have allegedly pirated, and not leave it to their systems, which appear to make overly sweeping approaches.

Further, I do not approve of the pro forma invoice tactic.

I can see through the legalese as I’ve had legal training and specialized in intellectual property. But I don’t believe everyone can see through it. They’re designed to intimidate, and based on some forum discussions, that intimidation works.

And I fear we are going to see many more of these. Like our experience earlier this year with a Spanish company, it seems they automate their processes too much, identifying piracy where there isn’t any. Gullible companies like Facebook and Google believe them and act against a smaller player.

Typically, copyright owners have turned a blind eye to the use of images of, say, packaging if the associated article is about them and promotional in nature (again, as this was—we alerted our readers to a fragrance launch).

I can’t promise you that we have records of every image we’ve used, because we might have clicked on the email server-side to get the download link, and Eudora’s filters took out the actual message once it was imported, for example. Or one of us went to a free photo site where an uploader hadn’t done their checks.

All I know is that we’ve behaved ourselves. I’d never accuse someone of doing something that they didn’t do and make my approach look like a scam. One hopes copyright reform will balance things on this front.


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Google’s advertising business is a negligence lawsuit waiting to be actioned

09.12.2022

Apparently the New Zealand government says Big Tech will pay a ‘fair price’ for local news content under new legislation.

Forget the newcomers like Stuff and The New Zealand Herald. The Fairfax Press, as the former was, was still running ‘The internet is scary’ stories at the turn of the century. What will Big Tech pay my firm? Any back pay? We have been in this game a long, long time. A lot longer than the newbies.

And what is the definition of ‘sharing’?

Because Google could be in for a lot.

Think about it this way: Google’s ad unit has enabled a lot of fake sites, scraped sites, spun sites, malware hosts, and the like, since anyone can sign up to be a publisher and start hosting their ads.

While Google will argue that they have nothing to do with the illegitimate usage of their services, some might look at it very differently.

Take the tort of negligence. To me this is classic Donahue v. Stevenson [1932] AC 562 territory and as we’re at 90 years since Lord Atkins’ judgement, it offers us some useful pointers.

Lord Atkin stated, ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

If you open up advertising to all actors (Google News also opens itself up to splogs), then is it foreseeable that unethical parties and bad faith actors will sign up? Yes. Is it foreseeable that they will host content illegally? Yes. Will this cause harm to the original copyright owner? Yes.

We also know a lot of these pirate sites are finding their content through Google News. Some have even told me so, since I tend to start with a softly, softly approach and send a polite request to a pirate.

I’d say a case in negligence is already shaping up.

If Google didn’t open up its advertising to all and sundry, then there would have been far fewer negative consequences—let’s not even get into surveillance, which is also a direct consequence of their policy and conduct.

Do companies that are online owe a duty of care to internet users? I’d say this is reasonable. I imagine some smaller firms might find it more difficult to get rid of a hacker, but overall, this seems reasonable.

Was this duty of care breached? Was there causation? By not vetting people signing up to the advertising programme, then yes. Pre-Google, ad networks were very careful, and I had the impression websites were approved on a case-by-case, manually reviewed basis. The mess the web is in, with people gaming search engines, with fake news sites (which really started as a way of making money), with advertising making pennies instead of dollars and scam artists all over the show, can all be traced to Google helping them monetize this conduct. There’s your obiter dicta right there. (Thanks to Amanda for remembering that term after all these years.)

Google hasn’t taken reasonable care, by design. And it’s done this for decades. And damages must be in the milliards to all legitimate publishers out there who have lost traffic to these unethical websites, who have seen advertising revenue plummet because of how Google has depressed the prices and how it feeds advertising to cheap websites that have cost their owners virtually nothing to run.

Make of this what you will. Now that governments are waking up after almost two decades, maybe Big Tech is only agreeing because it fears the rest of us will figure out that they owe way, way more than the pittance they’ll pay out under these legislative schemes?

Anyone with enough legal nous to give this a bash on behalf of the millions of legitimate publishers, past and present, directly harmed by Google and other Big Tech companies’ actions?


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The Red Points saga: this might finally be resolved

24.08.2022

Nine days since the first DMCA notice was lobbed against us, the saga has finally reached the powers-that-be at Hearst SL.

And once it did, things began happening quickly. I’ve heard from their head of legal, and what he’s outlined to me seems like a good resolution to the whole saga.

He tells me some changes have been made to Red Points Solution SL’s processes, which I think is a good outcome if it saves others the grief of what I’ve had to deal with—especially while contending with publishing deadlines and the day-to-day running of a company. It was a bigger distraction than I would have liked to admit.

In a gesture of goodwill, I offered to set to private the two stories we published on the Lucire website over the whole affair.

I suggested to him that I update everyone here, since you might have thought that the disappearance of the two articles was down to Red Points!

I shudder to think what would have happened if I didn’t have contact email addresses for senior VPs at Hearst Communications, Inc. or former Lucire team members who wound up working for Hearst. Or how someone without a legal background specializing in IP would have felt. Not everyone would be in this position.

It’s still concerning to me that Google continues to state that results have been removed in site searches for us, and for the topics those articles covered. Basically, they’re saying we’re thieves, and I don’t think that’s fair dinkum. As Google works at a glacial pace, I assume the notices will eventually disappear once they receive Red Points’ withdrawals.

I’ve also received an apology from Red Points’ CMO. The gentlemanly thing to do is to accept it. It will be interesting to see how long it takes for Google to stop saying we stole stuff.


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Red Points Solution SL walks right into it, attempts to shut down free speech via DMCA

23.08.2022

This is too good. Now, Hearst Communications, Inc. was sensible enough to realize that what I raised was real, and a senior VP put me on to a colleague dealing with Hearst Magazines International. Nothing yet, but I wrote a release, sent it to a few colleagues, and published it on Lucire describing what had happened. As it’s going in to Lucire, unlike Google, I’m really careful about libel.

Just now, Red Points Solution SL has been by and issued another notice. They can’t deal with the negative publicity so they play the only card they know how: issuing another DMCA notice to Google and leaving Hearst SL wide open to a penalty of perjury.

I mean, I’ve seen stupid (like that time a former disgruntled staffer wrote an anonymous note to people who knew me but hand-addressed the envelope), but this is like walking into a trap (that I didn’t even realize I had set!).

Now, what if word got out even more widely that Red Points Solution SL is shutting down free speech? Time to send the release more widely?

If only I had more time—but this might be tomorrow’s free-time project.


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Google finally responds to our first counter-notification

21.08.2022

I suppose it’s positive that Google has finally responded to our first counter-notification against Hearst SL’s and Red Points Solution SL’s fraudulent DMCA notice. Hey, Google, why don’t you begin by asking your complainants for proof before presuming an innocent party guilty? Then used your milliards of dollars and high-tech to see that our work is original? Would have saved us a lot of time.

You’ll soon see the other two counter-notices I filed on the first issue alone while I waited and waited and waited for you to respond. Failing to do that first step has cost us all time. And you knew of this problem back in the second half of the 2010s, if not before.

This system is really broken.
 

 

Oh well, another two weeks of libel by Google on the first issue alone. Everyone: use Mojeek.


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Companies worth millions engaging in fraud, and Google is their weapon

20.08.2022

Yesterday morning, we received a second notice with two more URLs—one with wholly our own content—from Hearst SL and its contractor, Red Points Solution SL.

I’ve done a bit more digging and it’s usually fraudsters who engage in this behaviour. You can read more about them in Techdirt, Mashable and Search Engine Land.

With their millions of dollars, I guess these two Spanish companies are now in the same game of fraud.

And Google believes them, even though Mashable wrote about these techniques in 2018.

If it’s that easy to manipulate Google, then it’s finished as a credible search engine.

Meanwhile, Red Points Solution and Hearst SL open themselves up to charges of perjury. Not too smart there.

Three firms with millions, even milliards, of dollars who don’t like the independents, and one firm now falsely claiming ownership of work from us, French Sole, BFA.com, and L’Oréal. With L’Oréal, why would you involve your own advertiser? Does Hearst SL want to slit its own wrists as a company?


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Time to get New York involved

19.08.2022

Still nothing from the Spanish outpost of Hearst or from Red Points Solution SL on their false accusation against Lucire, so tonight I contacted one of the Hearst VPs in New York—as they’ll more likely understand where we’re coming from. Whenever there’s been a copyright matter, Americans tend to respond quickly, faster than Europeans or the British—except for Big Tech, natch. Those folks you need to threaten. It’s frustrating to continue seeing a DMCA notice when we do a site: search on Google, one that isn’t warranted. I’ve found a senior enough VP—I’ve been around long enough to know who’s who—who I think would get it.

Further investigation shows Red Points being named as defendant in quite a few cases—and they’re just the ones that the search engines have picked up. Who knows how many others aren’t put online or are worthy enough of being reported on?

I’d be extremely wary of a company whose technology appears to be very unreliable, if our case is any indication, and exposing their clients to lawsuits. I see from the Google complaint only two sites have fallen foul to their specious claims—and you have to ask why not every single article written about Valentina Sampaio being named Armani Beauty’s newest ambassador? Were we picked out because they felt we were small enough to be picked on and that we wouldn’t fight back? And why would they risk claiming not only our original content as their client’s, but the work of L’Oréal—a major Hearst advertiser—too? It’s potentially destructive for Hearst and harms its relationship with an advertiser.

They’ve picked on the wrong people—especially a magazine that is known to some people inside Hearst.
 
I was curious to see what part of the Spanish web I had accessed in the last year. Answer: not a lot. More in the last day or so looking up Hearst’s Spanish outpost.
 


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False accusations from Red Points Solution SL

18.08.2022

Yesterday, I returned to find a DMCA claim filed against us by Red Points Solution SL, purporting to act for Harper’s Bazaar España publisher Hearst Magazines SL, falsely accusing us of breaching their copyright with this article. You can read the notice here.

Naturally, I filed a counter-claim because their accusation is baseless.

Our source was PR Newswire, and it’s not uncommon to find stories of interest through that platform. In fact, Armani Beauty was so keen to get this out there on November 3 that we received the release in four languages at 15.28, 15.30, 15.33, 15.36, 15.39, 15.46 and 16.03 UTC.

The quotations and images were supplied by Armani Beauty, which is part of L’Oréal. I’ve worked with people from L’Oréal for over two decades and know their systems well enough, including the money they have for licensing images for press usage.

Lucire has a lot of original articles, but some of our news is release-based, as it is for anyone in our industry.

Our rule is: even when it’s a release, you write it up individually in your own words. You may have something additional to bring to the story. And we aren’t a repository of releases.

The only time we would run a release mostly verbatim is if we issued it, something that might happen once every couple of years.

Naturally, Google has so far done nothing and our story remains absent from their index. Big Tech loves big firms like Hearst.

I’ve tagged Harper’s Bazaar España in social media demanding they front up with their evidence. I’ve also messaged Hearst’s Spanish office with the following.

Ladies and Gentlemen:
 
Yesterday, your firm lobbed a false accusation against us by deceptively claiming your copyright had been breached by one of our articles. I note that you filed this as a DMCA complaint with Google.

We have filed a counter-notice.

We find it appalling that you would claim an original work has breached your copyright.

The imagery and quotations to our articles were sourced from L’Oréal, and we have informed them directly of your deceptive and misleading conduct.

I demand you furnish proof. As you will no doubt fail to, we demand you withdraw the complaint. We reserve the right to pursue our own legal remedies against you.
 
Yours faithfully,
 
Jack Yan
Publisher, Lucire

I basically thought they were being dicks and my friend Oliver Woods chimed in on Twitter about it. Oli’s very insightful and objective, and I respect his opinion.

They are being dicks, but there is a strategy behind it. Petty little minds wanting to look good on Google, not liking someone else ahead of them. (Not that I ever looked to see where our story ranked. I mean, seriously?)

It reminds me of a US designer’s rep who emailed me a while back wanting us to remove an article.

I asked: what’s wrong with it? Did we err in facts? Is it somehow defamatory?

When I probed a bit more deeply, it turned out that they were incensed it came up so highly in a Google image search.

I explained that that wasn’t a good enough reason, especially since the story had been provided to us by a PR firm.

They countered by saying that as they had not heard of us, it was highly unlikely that they would have released us that news.

I thought it was a very strange strategy to accuse someone you wanted a favour from of lying.

I still have the email from their PR firm. Call me Lord of the Files.

I’m not going to reveal the identity of the designer. I asked one of my team to see if he would call me directly instead of having one of his rude staff insult me. He never did call. The image is still there, and I bet they’re seething each time they see it.

It’s not even a bad image. It just doesn’t happen to be hosted by them.

I don’t really know why search engine domination is so important. We all should have a fair crack at it, and let whomever has the most meritorious item on a particular topic come up top.

The American designer, and the Spanish outpost of this American media giant Hearst, are obviously not people who like freedom of the press, freedom of expression, or a meritorious web. American people might like this stuff but a lot of their corporations don’t.

Which is why Google is terrible because it doesn’t allow it. We know through numerous lawsuits it has biases toward its own properties, for a start. I’ve observed them favouring big media brands over independents—even when independents break a news story.

Mojeek is just so, so much better. No agenda. Just search the way it was and should have stayed. That’s the “next Google”, the one that could save the web, that I had asked for in 2010.

Except it shouldn’t be the next Google because we don’t want more surveillance and tribalism.

Fair, unbiased search is where Mojeek excels. I really hope it catches on more. God knows the world needs it.

I think the world needs Lucire, too, the title that Harper’s Bazaar Australia named as part of its ‘A-list of style’. The Aussies are just so much nicer.
 
PS.: Hearst uses a company called Red Points Solution SL to do its supposed copyright infringement detection. Based on this, they must be pretty shit at it. And remember, we don’t even publish in Spanish. Yet.

I see you have falsely accused us of copyright infringement with our article at https://lucire.com/insider/20211103/valentina-sampaio-named-armani-beautys-newest-ambassador/ when we have done nothing of the sort.

We demand that you withdraw your DMCA complaint to Google.
 
https://lumendatabase.org/notices/28469986#
 

Our story’s source is Armani Beauty through PR Newswire, to which we are signed up as a legitimate international media organization. The story is our work, using facts and quotations provided in the release.

PR Newswire provided us with this release on November 3, 2021, at 15.28, 15.30, 15.33, 15.36, 15.39, 15.46 and 16.03.

A counter-notice has been filed.

We require an explanation from you on why you have targeted a legitimate media organization with your deception. Clearly your detection systems are not very good and we would certainly be discouraged from using them.

 
P.PS.: One more email to Red Points Solution SL on August 19, 21.56 UTC after they doubled-down with another notice removing two URLs from Google. Again, no proof of their original work was provided, and none can be seen in Lumen even when requested. It seems Google will lap anything up if it sees a big company behind it.

I have reached out to you through numerous means but yet to hear back.

I publish Lucire, a magazine with a 25-year history and five editions worldwide. You might even say we’re the sort of business that would need Red Points Solution’s services.

However, we’ve found ourselves at the other end, with legitimate media stories from our website removed from Google with DMCA notices you’ve filed.

Your client is Hearst SL.

If your latest efforts are down to Hearst’s orders, then they are claiming ownership over material that is not theirs.

All our content is original, and where it is not, it is properly licensed.

In the first case:
 
https://lucire.com/insider/20211103/valentina-sampaio-named-armani-beautys-newest-ambassador/
 

Your client does not own this material at all. We own the story, and the quotations and images are owned by and licensed to us by L’Oréal. Hearst has no connection to it other than Harper’s Bazaar being mentioned in an editorial fashion.

In the second case:
 
https://lucire.com/insider/20190905/nicky-hilton-hosts-brunch-to-celebrate-her-collaboration-with-french-sole/
 

Your client does not own this material at all. We own the story, and the images are owned by and licensed to us by French Sole and BFA.com. Hearst has no connection to it other than Harper’s Bazaar being mentioned in an editorial fashion.

In the third case:
 
https://lucire.com/insider/page/164/?mobiinsider%2F20120130%2Felizabeth-olsen-models-asos-magazines-cover%2F%3Fwpmp_switcher=mobile
 

Your client does not own this material at all. In fact, we own this material fully. No Hearst properties are even mentioned.

Counter-notifications have been filed on the basis that it is our original content and that your client has no right to make the claim in the first place.

It would be far easier if you would review your systems as presently they are opening your client and yourselves up to a legal claim …

We think you need to go back to your client and have them show you just how they can legitimately claim ownership of material that is not theirs.

In the meantime, we insist you stop these notices as they are unwarranted and unfounded.

We look forward to hearing from you.


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