Hilton, who is already involved in four different lawsuits with eight different agencies, including the case with the X17 photo agency, was able to get his site back up in limited capacity. As of this writing, new posts are going up but there is no ability to leave comments and no archives.
On his site, Perez refers to these problems as “technical difficulties“.
However, there is no doubt that this is a major victory for the photo agencies, who have been pressuring Hilton’s Australian host, Crucial Paradigm, to take action. On Wednesday the company said it would shut the site down if it received just one more copyright complaint against Hilton, the next day it made good on that promise.
What remains to be seen now is whether or not this victory can and will translate into a victory in the courts.
A Different Kind of Takedown
One of the things that makes the case so interesting is that Hilton, who is from Los Angeles, California was using a host based in Sydney, Australia with its servers in Dallas, Texas.
Though it is clearly an international incident with all of the legal complexities that come with it, it is at least likely that the photo agencies used Australia’s notice and takedown provision, which looks remarkably like the American DMCA version.
This means that Crucial could have continued to follow the law, removing allegedly infringing works and putting them back after getting counternotice, without fear of being held liable for the infringement. However, it appears that the number and frequency of these copyright complaints simply grew to be too much for Crucial.
They decided, for better or worse, that the best course of action was to dump Hilton and avoid the complaints altogether. However, it was a decision likely reached for business reasons and not one motivated by altruism.
Odds are, Hilton was simply costing the Crucial too much money and causing too much headache to warrant keeping around.
An Expensive Proposition
Though the DMCA and similar laws are designed to save hosts money, offer legal clarity and protect them from being sued for copyright infringement due to their clients, they are still an expense that the company has to consider.
Every copyright complaint has to be researched by someone with knowledge of the country’s laws, often times an attorney, and then, if the notice is found to be complete, it has to be acted upon by a member of the abuse team. Communications have to be sent out to the complaining party. Then, if the subject of the notice decides to file a counter-notice, then the whole process is repeated again, only this time the removed work is located and put back.
This means that, with every copyright complaint there is a set of costs. It costs money to pay the people who process the claim, to store the works in a non-public area as they await a counternotice, to set up a system by which to pull the infringing material down and and also the potential damage to their reputation for getting involved in a controversial DMCA notice. .
Fortunately, for most hosts, these costs are rather flat. Once the system is in place, the abuse agents are hired and the system is set up, the cost of an additional notice is relatively small. However, as the host grows and the number of complaints rise, the system must expand and, as it does, so does the cost associated with it.
If you couple that with how little hosts charge for their services, which are often free or just a few dollars per month, it is important for hosts to keep their copyright-related expenses as low as possible. This leads to many streamline their copyright process, such as Ebay with its VeRO program, and, in Hilton’s case, shutting down accounts that tax the system.
The bottom line is that, if your site generates a large volume of copyright complaints, you are going to have a very difficult time finding a host that will let you keep your site with them for a long period of time.
To the host, it is simply not worth battling a tidal wave of complaints just to earn the monthly subscription fees they charge. There is no financial incentive for hosts to keep sites that regularly become targets of legitimate copyright notices and, as long as the current system stays in effect, there never will be.
Hilton is Moving
In the meantime, Hilton is moving his site to another host. Early indications from Domain Tools are that he is moving the site to a server on Voxel Dot Net, a New York-based hosting company. As such, the host is bound by the DMCA and has already registered an agent with the United States Copyright Office.
If this is true, it means that, most likely, the copyright complaints will continue to flow unless Hilton drastically changes his methods. As such, it seems to only be a matter of time before Hilton’s new host grows just as weary of the copyright complaints as his old one and the process repeats itself.
The problem Hilton faces is that, due to the number of complaints he draws and the amount of traffic his site receives, he is unlikely to find a host that can both meet his needs and deal with the flow of complaints. Since most countries where high-end hosting is available have notice and takedown provisions, Hilton is unlikely to find a powerful enough host with loose enough laws to keep his site up long term.
Barring some kind of special relationship with the host, Hilton’s site is likely going to be a perpetual drain or a legal risk on whatever host he moves to and, thus, will likely struggle to find a permanent home wherever he goes.
Sadly, for Hilton, even if he is able to get his site re-established over the long term, he still faces all of the same photo agencies in court. This is merely the first battle in what is likely to be a very lengthy war and it appears, at this point, to be a strong victory for the photo agencies.
It also serves as a powerful lesson for Webmasters. Though you may believe you have a solid relationship with your host, unless you are a major customer, the amount you pay in subscriptions does not justify them taking either a large legal risk on your behalf of spending a lot of time fielding copyright complaints. A complaint or two is one thing, but once your site places a burden on the system, the host may be forced to cut ties with you.
In fact, in the United States, the DMCA requires hosts to have a plan in place to terminate the accounts of repeat infringers. Though the law doesn’t state what constitutes a “repeat” infringer, one can rest assured that, if they draw too many legitimate copyright complaints, they will be without a host pretty quick.
Mistakes happen and misunderstandings are inevitable, but repeatedly drawing copyright complaints is not going to win you any friends. Hosts are businesses and they operate as such. If your site becomes a drain on their time, resources and profits, they will terminate your account.
It is just a matter of exactly how much they are willing to take.