ESA Goes All Fahrenheit 451 on Kotaku, Threatens Suit

wiiupdate.jpg

Prepare for a rant. Not against the ESA in particular, though they are most certainly part of the problem, but against the legion of freelance "internet investigators" who make it their job to not only harass the media, but to try and slowly dismantle the First Amendment.

The ESA today sent us a copyright infringement notice. Really not that big a deal because, besides referring to us as Jalopnik, the image in question is of a screenshot of a Wii service update for a story that ran in August about some routine update hitting the Wii.

My issue isn't with the stupidity of the notice, or the amount of my time it wastes. My issue is with all of the other sites that the Intellectual Property Enforcement folks at the Entertainment Software Association strong-arm into taking down legitimate news stories because they don't have the understanding of the law or the time to deal with bogus complaints.

I'm certain that someone at the ESA didn't send this out on their own, but the fact their IPE people do that on a daily basis most certainly has a chilling effect on a free and independent media. What I suggest that folks like the ESA and Microsoft and Sony and Nintendo and everyone else who uses these freelancers do is to stop using them, or perhaps hire people who both know the law and the subject they are supposed to be dealing with.ISP: jalopnik.com ESA Reference Number: 182-11890065

Dear jalopnik.com:

The Entertainment Software Association ("ESA") is a U.S. trade association that represents the intellectual property interests of numerous companies that publish interactive games for video game consoles, personal computers, handheld devices and the Internet (hereinafter collectively referred to as "ESA members"). ESA is authorized to act on behalf of ESA members whose copyright and other intellectual property rights it believes to be infringed as described herein.

ESA is providing this notice pursuant to the Digital Millennium Copyright Act and 17 USC § 512 (c) to make jalopnik.com aware of material on its network or system that infringes the exclusive copyright and other rights of one or more ESA members. This notice is addressed to you as the agent designated by jalopnik.com to receive notifications of claimed infringement.

Based on the information at its disposal on 4 Oct 2007 08:30:20 GMT, ESA has a good faith belief that 69.60.7.199 infringes the rights of one or more ESA members by offering for sale or download unauthorized copies of game products protected by copyright, or offering for sale or download material that is the subject of infringing activities. The copyrighted works that have been infringed include but are not limited to:

Title: Wii Modchips Infringement Source: Web Infringement Timestamp: 4 Oct 2007 08:30:20 GMT Infringement Last Documented: 5 Oct 2007 17:48:33 GMT Infringer Username: Infringing Filename: http://kotaku.com/gaming/nip-&-tuck/the-littlest- wii-update-289134.php Infringing Filesize: 1 Infringer IP Address: 69.60.7.199 Infringer DNS Name: Infringing URL: http://kotaku.com/gaming/nip-&-tuck/the-littlest-wii- update-289134.php

The unauthorized copies of such game product(s) or the material that is the subject of infringing activities appears on or is made available through 69.60.7.199. Those items are listed and/or identified thereon by their titles or variations thereof, game- related listings/references/descriptions, or depictions of game- related artwork. Such copies, titles, game-related listings/ references/descriptions, depictions, and material that is the subject of infringing activities, are hereinafter referred to as "Infringing Material."

Accordingly, ESA hereby requests jalopnik.com to immediately do the following:

1. Notify the account holder of the Infringing Material. 2. Remove, or disable access to, the Infringing Material detailed above. 3. Take appropriate action against the account holder under your Abuse Policy/Terms of Service Agreement, including termination of a repeat offender.

ESA believes that the information in this notification is accurate. Under penalty of perjury, I hereby affirm that ESA is authorized to act on behalf of ESA members whose exclusive copyright rights we believe to be infringed as described herein. jalopnik.com or the account holder may contact ESA at the above-listed contact details, with email preferred. Please include the above-noted Reference Number in the subject line of all email correspondence.

Thank you for your cooperation and prompt response in this matter.

Sincerely,

Intellectual Property Enforcement Entertainment Software Association


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