31 January 2014

Benjamin Hayempour Attempts Improper DMCA Takedown!

On December 14, 2013, I wrote a post at this blog entitled "Graduate Student Benjamin Hayempour Shows Pattern Of Plagiarism." This post identified eight different papers written by Hayempour, by citation, that contained strong evidence of plagiarism with a link to my source at Retraction Watch that analyzed this instances of alleged plagiarism which provided a factual basis for my own post. I also identified other facts about this case that corroborated my conclusion, such as his dealings with journals that have a poor reputation (supported by another link to a third party. And, of course, I included my own analysis of the situation. Later, I posted a comment to my own blog post identifying a post at a different blog, Neuroskeptic, that analyzed a ninth instance of alleged plagiarism by Hayempour.

These links, which provide a factual basis for my own post, insulate me from liability for defamation, because allegedly defamatory material concerning media defendants (which include bloggers) or matters of public interest (such as academic plagiarism) are not actionable unless they are not only untrue, but are made with reckless disregard for the truth. Reasonable reliance on third parties who have analyzed the allegedly plagiarized papers in depth in a manner that I concurred with (including one paper that was retracted) establishes a lack of recklessness with regard to the truth.

Not long after I made that post, Hayempour wrote me a number of e-mails alleging that I had defamed him. He did not at any point claim that the material was copyright infringing. His arguments in those posts that he acts did not constitute plagiarism were unconvincing. I responded by stating, in essence, that the facts spoke for themselves and that I would not take down or edit my post. I did make a correction regarding his current institutional affiliation which was clarified by his correspondence. I had originally, inaccurately claimed that he had another institutional affiliation based upon online materials about him that asserted that this was the case.

Today, Google took down that post pursuant to a DMCA complaint alleging a copyright violation (no doubt filed by Hayempour or someone acting on his behalf). They revert your post to draft form, put a notice at the top of your log in page, and send you an e-mail. The DMCA creates a safe harbor for entities such as Google in is role as the host of the Blogger service from copyright violation liability if it takes down allegedly offending post and gives a notice to the blogger whose post was taken down. There is a process for filing a counternotice to have the post reinstated because it is not a copyright violation which I utilized today. Under the DMCA process, the post must be reinstated upon receipt of a conternotice, unless a court action is filed with regard to my alleged copyright violation within 14 days.

Since there is no remotely viable basis for claiming a copyright violation in a post that contains no copied material, and which would be protected by fair use criticism provisions even if it did, I have no fear of litigation over this post. I am quite comfortable that I could prevail without ever having to appear in person in the California federal court venue designated by Google in its Complaint form.

A DMCA takedown is not authorized for an alleged instance of defamation.

Hayempour, in his ongoing pattern of misconduct, had to lie about his claim that he had a good faith basis to believe that there was a copyright violation in order to issue a DMCA takedown notice. Unlike Retraction Watch and Neuroskeptic, I didn't even quote from the allegedly plagiarized articles that he wrote.

So, again showing Hayempour has shown himself to be dishonest and unfit to be admitted to professional practice in his field. Of course, we already knew that from his nine documented instances of plagiarism and his dubious associations with shady journals, and from his abuse of the legal process when sending a cease and desist notice to Retraction Watch.

11 comments:

Dave Barnes said...

You need to ditch Google as your blogging provider.
Get your own domain, ISP and install Word Press.

andrew said...

I don't fault Google on this point. Any ISP faced with the incentives created by the DMCA safe harbor would have done the same, and Google, at least, makes a point of making the process administratively smooth as possible and doing what it can to support groups that oppose the status quo.

Anonymous said...

It has now been more than 14 days, but your original post remains down. Any further updates?

andrew said...

Received today:

"Hello,

Thanks for reaching out to us.

We have received your DMCA counter notification dated January 31, 2014 regarding http://washparkprophet.blogspot.com/2013/12/graduate-student-benjamin-hayempour.html. As described in 17 U.S.C. 512(g), we will forward the counter notification to the complainant. If we do not receive notice from the complainant that s/he has brought an action in the district court within 14 days, we will reinstate the material in question on Blogger. We appreciate your patience in this process.

Sincerely,
The Blogger Team"

Assuming that no lawsuit is filed by March 26, 2014, my post should be restored.

BTW, Benjamin Hayenpour has asserted to me that he didn't file the takedown notice. I do not know if this is correct and have been unable to locate the original takedown letter on the database to which Google referred me.

Anonymous said...

Thanks for the update! Was the database ChillingEffects.org, or something else?

It's ... impressive .. that Mr. Hayempour (or Ayden Jacobs, as he seems to prefer currently) claims to have not sent the DMCA takedown. It will be interesting to see what it says, if/when it can be located.

Anonymous said...

BTW, I though you might be interested to learn that Ayden Jacob (aka Hayempour) is still plagiarizing.

(also posted to RetractionWatch)

---------
Hayempour (now going by Ayden Jacob) is *STILL PLAGIARIZING*. I admit to being stunned, but there we go...

Ayden's new website contains the following two sentences:

"Using patented nerve monitoring technology, the surgeon gains lateral (side) access to the spinal column, avoiding any major nerves in the area between the incision and the column. The XLIF procedure does not require an anterior (front) or posterior (back) exposure, and thereby does not present the same risks of vascular and/or neural injury as traditional approaches."

(from http://www.aydenjacobmedicine.com/orthopedic-surgery.html , archived here: http://archive.is/c0lYJ )

They are copied, word-for-word, from http://www.nuvasive.com/patient-solutions/nuvasive-surgical-solutions/extreme-lateral-interbody-fusion/ (archived here: http://archive.is/6fiyx ).

There is no citation, no quotation marks, not even a link to the site he stole from.

He learned *nothing*.

Anonymous said...

The post is now restored: http://washparkprophet.blogspot.com/2013/12/graduate-student-benjamin-hayempour.html

andrew said...

"emovals@google.com
Mar 12

to me
Hello,

Thanks for reaching out to us.

We have received your DMCA counter notification dated January 31, 2014 regarding http://washparkprophet.blogspot.com/2013/12/graduate-student-benjamin-hayempour.html. As described in 17 U.S.C. 512(g), we will forward the counter notification to the complainant. If we do not receive notice from the complainant that s/he has brought an action in the district court within 14 days, we will reinstate the material in question on Blogger. We appreciate your patience in this process.

Sincerely,
The Blogger Team"

Also, I will note that Benjamin Hayenpour as contacted me more than once by e-mail and disavowed involvement in the DMCA Takedown. I don't know if that is true since I was unable to locate a copy of the original complaint with enough detail to show its authorship. But, it is perfectly possible that he is truth and correct on this point.

andrew said...

"removals@google.com
Apr 4 (2 days ago)

to me
Hello,

In accordance with the DMCA, we have completed processing your counter notification and we have reinstated the content in question on http://washparkprophet.blogspot.com/2013/12/graduate-student-benjamin-hayempour.html.

This post has been restored in draft version. You will need to sign into your account and republish it. Please let us know if we can assist you further.

Regards,
The Google Team"

andrew said...

"It has now been more than 14 days, but your original post remains down. Any further updates?"

While the DCMA takedown process is billed as taking just 14 days, it appears to take more like nine weeks in reality.

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