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Here is the text of the letter
sent by Stroock, Stroock and Lavan, on behalf of their
client, Elan Vital Inc., to Verio, the company hosting
www.ex-premie.org. The pages listed in the schedule as
infringing copyright were temporarily removed from the
website. Following our counter-notification,
Stroock declined to take the matter further, and the pages
were reinstated.
April 24, 2003
Ms. [name removed]
Copyright Administrator
Verio, Inc.
8005 South Chester Street, Suite 200
Englewood, Colorado 80112
Re: DMCA Notice of Copyright Infringement on
"www.ex.premie.org"
Dear [name removed]:
We are counsel for Elan Vital, Inc, ("EVI") and are
responsible for the policing of intellectual property
belonging to EVI.
EVI is the holder of a wide range of copyright interests in
a catalog of intellectual property including copyrights for
which it receives protection under the laws of the United
States and over 80 countries around the world. EVI has
expended considerable resources acquiring, promoting arid
protecting this intellectual property.
It has come to our attention that your server hosts a large
Web site dedicated to an ongoing series of acts that violate
the proprietary rights of EVI. Specifically, we have learned
that www.ex-premie.org, which is hosted by your company,
unquestionably and unlawfully violates EVI's valid and
subsisting copyright interests. This Web site, and the
constituent pages therein, makes up a staggering virtual
library of infringing works: nearly 100 photographs and
works of visual arts; more than 43 proprietary literary
works, including the complete texts to 14 complete songs and
an entire book. Moreover, the infringing Web site hosted by
your company has collected many of these works onto
downloadable files for the specific purpose of facilitating
further infringing "file-sharing" distribution. A list of
URL's upon which infringing material appears is attached as
"Schedule A." We also note for the record that this illegal
use of your hosting services is in direct violation of your
purported Terms of Service, which allegedly proscribes
infringement.
Pursuant to 17 US.C. § 512 ("the Digital Millennium
Copyright Act" or DMCA"), we assert and hereby place Verio,
Inc. on notice that the communications in question are in
violation of our client's proprietary rights. Failure to act
in accordance with the DMCA may result in damages and
injunctive relief being awarded against Verio, Inc. for
vicarious infringement.
As required by the DMCA, we hereby state that we have a good
faith belief that the use of the material in the manner
complained of is not authorized by the copyright owner, its
agent or the law. The information in this notification is
accurate, Further, under penalty of perjury, I represent
that we are authorized to act on behalf of EVI in policing
its proprietary interests.
In light of the above, we demand that you immediately remove
or deny public access to the infringing Web site. We also
request that you provide us with written assurance within 72
hours of receipt of this letter that such compliance has
been effectuated.
Finally, we respectfully remind you that the infringing Web
site may be reinstituted only upon fax or mail service of a
counter notification that fully complies with the stricture
of Sections 512(g)(2) and (3) of the DMCA, including the
infringer's consent to suit in the United States Federal
District Court and waiver of jurisdictional challenge. This
notice, and the Schedule attached hereto shall not be
construed as a waiver of any claim in part or in whole by
EVI, it's licensees, licensors, or any affiliated entities,
and all rights under common law and statute are expressly
reserved.
If I may answer any questions or provide further
information, please call me at your earliest
convenience.
Very truly yours,
Deborah Drooz
Schedule
A
Table of
web pages infringing upon proprietary rights of Elan Vital
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