Response to Takedown Notice on Fee Simple Subject to Executory Interest: An Analysis of the Preemption and Revocation of Black Property Rights

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Response to TakeDown Notice on the law review excerpt by Shaytonna V. Bullock, Fee Simple Subject to Executory Interest: an Analysis of the Preemption and Revocation of Black Property Rights, 12 Southern Journal of Policy and Justice 205 (Fall 2018).

This article has been taken down because of a copyright challenge I don't think this was a copyright infringement it fits in the fair use exception however InMotionHosting has said they don't make this determination, that they err on the side of the person complaining and that I must remove it as a condition of terms of agreement. I could probably file a countercomplaint but I am not the committed to keeping the article up. Professor Randall

Original Complaint

Somebody used the inquiry form to send you a message on February 20th at 4:11pm EST.

The posted data is as follows:

firstname: (removed to protect privacy in accordance with Inmotionhosting Terms of Service)

lastname: (remove to protect privacy)

companyname:

address:  (removed to protect privacy)

city: (removed to protect privacy)

state: MD

country: US

zipcode:  (removed to protect privacy)

telephone:  (removed to protect privacy)

email:  (removed to protect privacy)

Detail of complaint removed to protect privacy in accordance with Inmotionhosting Terms of Service

Response to TakeDown Notice on the law review excerpt by Shaytonna V. Bullock, Fee Simple Subject to Executory Interest: an Analysis of the Preemption and Revocation of Black Property Rights, 12 Southern Journal of Policy and Justice 205 (Fall 2018)

Notification of DMCA Infringement Complaint - racism.org - 24HR Notice

Hello Vernellia,

We recently received a complaint that certain infringing material was posted on a website hosted on your server without the owner's authorization. This email is to notify you of the pending suspension of your web hosting account and related services pending resolution of this matter. Our Legal Dept must receive a response within the next 24hrs or your site will be disabled pending your response.

Below is a copy of the complaint for your review.

Please direct any questions or responses to our Legal Dept by emailing them at This email address is being protected from spambots. You need JavaScript enabled to view it.. Additionally, in order to maintain an accurate record of all matters, we require that all information be sent via email or letter/facsimile only. Any telephone calls will not be returned.

As you know, our services permit customers to host and make available content over the Internet. Although we do not affirmatively screen customer content, we also do not tolerate infringing material on our equipment and may suspend a site that appears to infringe on any intellectual property rights. Due to the potential legal exposure to us, no prior notice of a suspension is generally given and in most cases, customers are informed by the complainant of the complaint.

Note, we will not engage in any battle with or between the parties and urge you to contact the complainant or its representative to resolve the matter. If you wish for this site to remain active on our servers and agree to remove the material voluntarily you MUST complete and return the attached declaration form. If you do not resolve this matter, pursuant to the terms and conditions you agreed to abide by, we will have no choice but to suspend your site.

Since intellectual property claims are serious matters, if applicable, a DMCA counter-notifications may be submitted in accordance with the DMCA. Please be advised that any counter-notification, emails or other materials submitted may be forwarded to third parties, including the complainant for purposes of validating its contents.

For additional information please visit: http://www.inmotionhosting.com/policies.html.

Thank you for your anticipated cooperation.

InMotion Hosting Legal Admin Dept

Response to TakeDown Notice

Thank you for your email.

I received the complaint and addressed.

My position is the content I published is under fair use of the exception to the copyright laws. In accordance with Title 17 U.S.C. section 107, the excerpt is provided for comment, background information, research and/or educational purposes only, under the "fair use" provisions of the federal copyright laws. I have been maintaining this site for over 20 years. The site is primarily excerpts of law review articles. I have over a 1000 articles.

I published a small excerpt of the article Fee Simple Subject to Executory Interest: An Analysis of the Preemption and Revocation of Black Property Rights. The excerpt is about 800 words of 9800+ word articles.

My website is non-commercial. Having a link for individuals to donate monies to support the website does not convert the site and my work into a commercial site. I have no ads and do not generate any monies from any commercial source. I don't sell anything on the website.

It is not true the excerpt was published before the article was published.

[. . .]

As I said In accordance with Title 17 U.S.C. section 107, the excerpt is an exception to the "fair use" provisions of the federal copyright laws. .

One additional comment: Here is a copy of the fair use notice that I place on my website:

Fair Use Notice

In accordance with Title 17 U.S.C. section 107, some material on this website is provided for comment, background information, research and/or educational purposes only, without permission from the copyright owner(s), under the "fair use" provisions of the federal copyright laws. These materials may not be distributed for other purposes without permission of the copyright owner(s). In general, the copyright owner is the author of the article.

Additional Communications

Hello Professor Randall,

Thank you for getting back to us.

Thank you for removing the picture as requested. However, the text will need to be removed as well. The question of whether this would fall under fair use is not something we engage in...or any battle with or between the parties in legal disputes. We urge you to contact the complainant or its representative to resolve the matter. Their contact information can be found in the original complaint. In situations such as this, we err on the side of caution and ask that the materials be removed as requested unless otherwise resolved with the complainant. Should the complainant consent to the use of their text, please have them email us to let us know the case can be closed.

Please also remember to complete and sign the Declaration from the original email and submit it back to us as failure to do so may result in the suspension of your account.

Our office hours are from 9 AM to 9 PM, Monday through Friday, Eastern time. If you have additional questions or concerns you may respond to this message and we will address those matters. Your correspondence will be responded to in the order that it was received so please allow 1-2 business days to receive your response.

Warm Regards,

hello Professor Randall,

This DMCA notice was submitted via our online form. On our form we do address the matter of fair use. Specifically, it states:

"Before submitting a DMCA notice, it’s important to consider if the manner in which the material is used falls under fair use. If you are not sure whether material located on a site hosted at INMOTION infringes your copyright, or if it is subject to fair use protections, you should first consider seeking legal advice.

Please be advised that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material or activity is infringing.

You are required to consider the possible fair use implications, as a result of Lenz v. Universal. We reserve the right to challenge abuses of the DMCA process, and your use of this form does not waive that right."

Additionally, the form requires the complainant to acknowledge the following statement by checking a box:

"I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. (Please note that you may be liable for damages if you “knowingly materially misrepresent” your copyrights – and we may seek to collect those damages. Fair use should also be taken into consideration.)"

The form requires also to swear under penalty of perjury that all information they are asserting is true and that they are the legal copyright holder or an agent thereof.

You can view that full form here: https://www.inmotionhosting.com/dmca-notice

Beyond that though we do not involve ourselves in the determination as to whether the content does or does not fall under fair use. Considering the complexity of determining fair use at times and the inconsistent rulings of the courts on these matters, to ensure that we are not making ourselves legally liable for something that may or may not be considered fair use we err on the side of caution and request the materials from the complaint be removed.

If you have any other questions, please let us know.

Warm Regards,

InMotion Legal Admin Team

Hello Professor Randall,

Thank you for getting back to us.

We have reviewed your account and have confirmed that the material or materials listed in the complaint have been removed as requested.

At this time we have closed this complaint and your account is no longer pending suspension.

Best Regards,