The Worst DMCA Response I’ve Seen
By Jonathan Bailey • Feb 4th, 2009 • Category: Articles, Personal Experiences, Villains
Update: This story has been updated. See below for the new information. When you send in a DMCA notice, a spam blog complaint or any other kind of abuse report to a Web host, there are a lot of different responses that you might receive.
The vast majority of hosts seem to take these issues seriously and pull down any spammy or infringing content quickly. Others seem to ignore any such requests and others reply with polite, but clearly stock, letters saying that they can’t help.
And then there is Joyent.
Joyent takes things to a new level. Not only does the site not help when someone is misusing your content, but they actually support scrapers and defend them in email responses.
Though many hosts have a policy of inaction against infringement, something that is legally dangerous and ethically dubious, none that I have seen have spent the time and energy Joyent’s representative did to protect them and defend them.
What Happened
Sunday, during some of my testing of FairShare, a system officially launched yesterday, I was notified about a site on a .info domain that had used nearly 100% of my recent article about U.S. Copyright Law.
I looked at the site in question and it appeared to either be a spam blog or a misguided aggregator. It was displaying the full content of dozens of entries on one page, using hotlinked images and the only original content was a pair of “thumbs up” and “thumbs down” buttons with each article that seemed to do nothing.
Though it linked to Plagiarism Today in the headline, it was not linking to or referencing my CC license nor was it referencing the “Share Alike” attribute. When combined with the hotlinked images, I decided to take action, filing a DMCA notice with their host, Joyent.
However, that was no simple process. Never having encountered this host, I searched their site for information about their DMCA agent. However, all I found was a postal address (Note: Link is to a privacy safe harbor, not copyright safe harbor). I checked for a registration with the U.S. Copyright Office, but found nothing. Since all other abuse requests seemed to be routed through their “Support” account, I emailed it and, since it was a weekend and they had limited support hours listed, I did not expect to hear back.
However, I heard back relatively quickly (within an hour), especially amazing considering it was also Super Bowl Sunday. The letter was from Linda Derezinski, who identified herself as the “Director of Support”. Her letter was short and said in part that:
“That is just a RSS feed aggregation site which is properly identifying as such, it is not taking your work and showing it as theirs…. If you do not wish them to show your RSS feed you of course are able to block them from reading it.”
In short, Derezinski was telling me that it was my responsibility as the provider of the RSS to “block” this site from republishing my feed wholesale on their site. Even though that is impossible with FeedBurner and impractical without knowing more about how the site is obtaining the feed.
I’m used to working with and educating hosts about copyright issues, but never have I had such a strong defense for a spam blogger. I responded back with some basic information about the DMCA and links to information on the law, including the Chilling Effects FAQ.
There was a slightly greater delay in this response but, after about an hour, Derezinski wrote back a second time saying the following:
“You have your site identified as creative commons…. They properly identify that the article is from your site. This is not DMCA issue.”
I wrote back a second time, this go around linking to my article about using Creative Commons to Stop Scraping, which includes a discussion with then-VP Mike Linksvayer. I pointed out that the site did not complete the license, neither linking to the license or mentioning the share-alike element.
That was the last I heard of the matter. As of this writing, the article in question is still up on the page in question (though it may cycle off any time now, after being up for a week) and dozens of other articles from different sources are still up, all with full text and hyperlinked images.
To recap what happened. I filed a DMCA notice in what seemed to be a straightforward scraping case, Joyent first defended the scraper saying that it was my responsibility to block them and then, after I showed that was not the case, then tried to tell me there wasn’t a copyright issue since I had a CC license. Once I showed that the site was in violation of my license, there was nothing but silence.
Needless to say this has me frustrated, but not defeated.
Offering a Defense
In the interest of fairness, I’m going to offer some potential defenses here.
- Splitting Hairs: I’ll admit openly that the representative was correct that I do have a CC license and the site in question did link back to PT. Though the use was a violation of the license, something I feel very comfortable saying, it is understandable why someone unfamiliar with the details of CC might think that the use was compliant.
- Questionable Spam Blog: There is room for debate if this site was a spam blog or an aggregator. Though it clearly violates the best practices for aggregation, it does seem to attempt to add some value. This doesn’t make it less of an infringement, for a host that specializes in applications, it might have been seen as a defense.
- Incorrect Person: Though it was the only email address provided, it is clear that Derezinski is neither familiar with nor accustomed to DMCA complaints. I could have sent the complaint via postal mail (I find it stunning that they don’t even offer a fax) but it is likely that the article would have scrolled off or changed URLs in that time.
I have no doubt in my mind that this is not an appropriate way to handle a copyright complaint (as I said in the title, the worst that I had seen) and that this company violates many of the best practices of the DMCA (Not registering their agent with the USCO, not having an email address, not having a direct copyright policy, etc.) but I do want to give them the benefit of the doubt.
I hope that this was a misunderstanding and nothing more.
Conclusions
One of the jobs that I do in my consulting practice is work with hosts on these kinds of issues. I’m often recruited to check for any flaws in their DMCA system and even do test runs of their takedown process. I have a lot of experience in this area.
This is the worst response that I have seen in seven plus years of handling DMCA issues. Though I applaud hosts for looking at DMCA notices and considering copyright issues, this was not a case where the notice was clearly false, the use raised fair use questions or had other common issues that arise with erroneous DMCA notices.
What makes it worse is that the host came down clearly on the side of wholesale RSS scraping and republishing. Meaning that, if you are a spam blogger reading this that engages in RSS scraping, Joyent is likely a natural choice for you as their staff, at least judging from this correspondence, feels that you are doing nothing wrong or illegal.
My hope is that this was just a miscommunication but it has been over 48 hours since my last correspondence with them and no action has been taken on my ticket. If I do not hear more within the next 24 hours, I will look at calling them or filing the notices with Google, provided that the work hasn’t scrolled off or naturally disappeared.
Update
At about 5 PM central time the day this story was posted, I was contacted by Peter Watridge, who said that Derezinski has “escalated” the ticket it to him and he had not been able to get it in a timely matter. He is going to work with the owner of the domain to get the work removed.
Though this is great news and certainly puts Joyent in a better light. The initial response was still not what I would characterize as appropriate. I will update again when/if the content is removed.
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Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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I think you're being too nice.
I'm not entirely certain why you are sending a DMCA takedown notice to the site's internet service provider rather than directly to the site owner itself. Your complaint is with the site, not Joyent, so why not deal directly with the site?
It's like going after a site for libel because a visitor commented in a libelous manner. That libel issue is between you and the commenter, not you and the site owner.
So why in this instance would you bother involving Joyent, when all they do is provide internet services to this web site? I am trying to comprehend the thought process in going after the host, which honestly seems like it may normally be the easy way out, rather than going after the violator – in this case, the web site operator.
Jonathan,
I am in Canada, .ca is the country domain for Canada. CIRA runs .ca. If a .ca domain is stealing/borrowing/wahtever else term can be used here, my content then I can go to their e-mail, if not then their webhost, and domain registrar (I personally use the same company for webhosting and domain registrar).
Could you go as far as whomever the company is the webhosting/domain registrar for joyent? Is there a “CIRA” for .com? I think it was Network Solutions 10+years ago.
Since you went to the provider to the span blog's hosting, is joyent the domain registrar? not everyone uses the same company for hosting and domain registration.
By hotlinking I will assume from your server……..don't you have in your Control Panel some anti-hotlinking? just turn it on and look for the nastiest image you could possibly think of. I had my fun when one of my sites had issues with hot-linking (I think I had way too much fun).
I've had that happen before. The host wrote back and claimed it wasn't a copyright issue because they weren't selling it.
I'm trying to cut a little slack since I haven't called them yet. Still, I wanted to get the warning out there…
There are several issues with talking to the person directly, especially in this case.
First, there was no contact information available for the person behind the site. In this case I probably would have contacted directly if the information had been readily available. However, there was no contact on the domain that I saw and the whois information was anonymous. The page itself had little useful information.
Second, I suspected that the site was a spam blog. With spam blogs there is usually a lot more than just one page being hosted on the server. Most hosts have policies against splogging and want to remove them. Typically, it's doing the host a favor as well.
The registrar is GoDaddy in this case and I have had these go rounds with GoDaddy before, they won't take action on a domain if they are only the registrar. Technically though, that is the right thing to do. It can be frustrating but legally they are right.
I keep my hotlinking controls light. I've had issues in the past where Feed Readers (like Google Reader) cant see my images due to hotlinking issues) I'm very careful with that and only take action against the most egregious offenders to avoid accidentally ensnaring legitimate readers.
Which host was that? I'd like to know so I can follow up with them.
Even when a domain owner is hiding their whois information, there is generally an email available in whois which acts as an email proxy between you, the registrar and the domain owner. For example, using DirectNic's privacy feature, contact email addresses are domain@directnicprivacy.com. This email address allows you to contact the site owner while ensuring their email address is not available to the world.
Are you saying that in this case, the domain owner did not have an email address available?
I totally get you on the spam blog issue, but that seems like a red herring to me. The complaint is still between you and the site owner, not the ISP.
If someone commented in a libelous fashion here, and the party who was perceived as being harmed as a result of that content ended up contacting you, are you telling me that you would take action rather than redirecting the complain to the comment owner?
And just so you know – I'm not trying to bust your balls here. Just trying to comprehend the logic because a lot of folks seem to subscribe to similar ideas for reconciliation of these types of issues.
I understand well about the forwarder (I use one on this site) but this was not a forwarder in any way. It was a godaddy.com address and was similar to admin@. Clearly not the right address. Also, I've emailed dozens of sites using those forwarders and have never gotten a response, nearly 90% have bounced.
In this case, at that time, I had not located an email address for the domain. That was the first problem. I got an idea from a Twitter tweet that did produce a different email, one I will write shortly but I am not optimistic as it looks invalid too.
The example you give is a bit munged. Libel is different from copyright in this area. Section 230 of the Communications Decency Act eliminates all liability from hosts for libelous statements where the DMCA eliminates all responsibility so long as hosts “expeditiously” remove infringing work.
So to bring the example to parity, if someone complained that a comment infringed their copyright, I would absolutely remove it and replace it with a copy of the notice as well as forward it to Chilling Effects for safekeeping. Libel is something I would deal with on a case by case basis. However, I have a broad, “Don't get personal” rule with the comments anyway.
If I feel that the site is run by a human being, I do attempt to approach them first. I find that works better and faster. However, in cases of possible spam blogs. I've never once, despite many dozens of contact attempts, received a useful reply. It's better to go to the host and spammers don't usually care about their blogs enough to do anything to preserve them.
I understand. I'm a lot less patient than you.
Well… They also have the advantage of I've had 2 days to calm down
I was much less patient Sunday…
Ahhhh.
I dont understand the point of this website. Why do you have RSS enabled and then complain about people posting your feed?. This seems rather insane.
“In short, Derezinski was telling me that it was my responsibility as the provider of the RSS to “block” this site from republishing my feed wholesale on their site”
This is a similar attitude to sites that allow their users to upload copyrighted images to their websites. One site, which does comply with DMCA's, has members who tell artists and photographers that it is up to us, the owners of copyrighted images, to figure out a way to block their image clipping tool. The 'mash up' generation has a huge appetite for content and they don't care who they step on to get it.
Good luck to you in this case of scraping – it is frustrating to have content/images used without permission.
I could go on forever on t his topic, but I wrote a post about it some time ago that goes over many of the points: http://www.plagiarismtoday.com/2006/08/29/why-r...
Which site is that, once again I want to speak with them and do some outreach if I can.
Not to belittle this response, but I've had much worse. One that I've had going on for 16 months (that I think has been resolved) involved a principal at a webhost threatening me with a defamation suit for saying that their inaction and non-functioning published email addresses for DMCA notifications made them complicit with infringers & splogs.
Thank you.
The site is polyvore.com
you can read about the controversy here:
http://artandghosts.typepad.com/my_weblog/2009/...
here:
http://www.flickr.com/groups/968666@N20/
and here on the officail blog:
http://blog.polyvore.com/2008/01/important-note...
where there are over 100 posts about the controversy.
Photobucket and fffoundit are sites that are involved too – much like the game in facebook.
You know, it's funny. Right after I published this and told Crystal about the article she said “Well, what about the time that…” and rattled off a string of my previous whine sessions that she endured that were, indeed, at least somewhat worse. I suppose that the headline is a bit of an exaggeration.
But I will say this. This is THE worst I've seen since I started Plagiarism Today and used my PT email account for a DMCA. Not that it means nearly as much…
Thanks for the info. I'll be contacting them shortly…
IMVU.com
I sent them a copy links to copyright myth sites and told them they were misinformed. They admitted they were wrong and said they'd delete it and then never did.
This is site that lets people upload images and and then sell accessories for their avatars. That wasn't the case with this one. It was just posted on a blog there.
Oh man I hate them too, but I successfully got them to remove my main site from indexing 6 months ago.
jealous beacuse you lot arent smart enough to write scrapers for you're selves?
if you sent me a DMCA takedown I wouldnt even use it to wipe my arse.
If you dont want your content copied dont put it on the internet, simple as that.
If you sent me a DMCA takedown request, id proberly wipe my arse with it. And you write about some pointless crap you know that?
Good for Joyent. I think it is fantastic that there's at least one hosting provider who will go to bat for its customers for lame DMCA takedown requests. We need more Joyents.
I don't want to come across as unsympathetic to real plagiarism but I thought RSS aggregation was part of the technology that helps make content more valuable. It also seems dubious of a scraper to link to your content and thus exposing you as the author; I've seen scrapers pass off the content as their own and never cite the original author but maybe this guy is polite plagiarizer. It's as if the site, while poorly implemented, simply used the tools you employ to do what RSS is meant for. Of course, we'll probably never know because you don't expose the perp in question so we're left guessing what the real situation is.
For what its worth, your RSS feed doesn't cite the CC license; only your website. So anyone using Google Reader, Bloglines, an RSS posting widget, or Facebook, is not likely to know your work is covered under a CC license because its not a part of your feed. Perhaps you can add a link at the bottom of every feed and cite the license? If its a poorly minted RSS aggregator, it will still pick up the reference in the feed. If its stripped away, your case becomes more clear. While CC might not have formalized its RSS policy doesn't mean you can't claim its covered in your feed, right? if it does make a difference, I'd suggest using a different license.
But being practical… No one should suggest you disable RSS feeds – that's crazy and reduces the value of your content. Same with managing whitelists or blacklists to prevent suspects from scraping your work; it ultimately takes too much of your time and you'll accidentally block someone who has a legitimate right to read your work. But adding disclaimers on your site, feed, emails, etc. is one way to extend the protection of the license and it sounds as if a more practical way to deal with this issue is available. Or, only show the first paragraph of your work in the RSS feed. If only the first paragraph is copied, then the syndication of your content will be limited to it. If they show the entire post, then you know you're dealing with a questionable operator and not a poorly thought out content aggregator like a Google or Bloglines wannabe.
I'm sure you can understand me when I say that DMCA takedown notices are abused regularly and ultimately harm both the content creator and the content consumer. At the least, recognize the frequent damage that the abusive use of takedowns have caused us all. Legitimate users are branded as thieves, viral marketing and low cost promotion are stifled, the concept of fair use gets extinguished, and the safe harbors built into the DMCA erode. So while you could argue your content is being stolen, the trail would lead anyone to believe that you are, in fact, the author of such content and not this creator of this questionable website. In the end, we all lose because your content will spread less frequently and we will not be able to communicate without a DMCA threat.
If you don't want your content showing in aggregators, don't offer a RSS feed. I think a reasonable person would just remove your feed from their aggregator if you asked, but I don't think you have legal recourse if you're offering a feed, which invites people to make a copy elsewhere.
Amen to C.G.'s comment on this. Seems to me the more your content is aggregated the more valuable it becomes. Why would you misuse DMCA to devalue your own content and stifle the growth of your product like this. Title of this article should have been “Worst DMCA Request I’ve Ever Sent”. I for one do not plan to frequent this site after reading this article.
Though I respect hosts that analyze and disregard obviously false DMCA notices, such as what Dreamhost does, Ignoring legitimate complaints only causes additional spam blogging and other problems. I agree that there needs to be balance, but no one wins with all complaints being outright ignored.
It is worth noting that Joyent did get the work removed and the site in question truncated its feeds. So they only “went to bat” for about 48 hours.
Actually, the CC license is supposed to be in the header of the feed. I'm not sure why FeedBurner is not showing it, they were at one point. There is actually a protocol designed by the CC organization for inserting CC permissions into the feed. I need to touch base with FeedBurner and find out why that is not happening as it was at one point.
As far as why I don't put it in the text, that suggestion actually came from Mike Linksvayer, once again of the Creative Commons organization.
http://www.plagiarismtoday.com/2007/06/05/using...
The idea is simple, if anyone wants to legitimately use my content within the context of the license, I am fine with it, however, I don't want to encourage or allow blind “RSS scraping” and spam blogging. If humans want to use my content on their site, that is fine, but spam bloggers are intentionally trying to game search engines and do everything they can to harm content creators, not participate in the symbiosis that is at the heart of CC.
On that note, I do add some protection to my feed via FeedBurner. But I don't see that as wholly relevant to this.
Regarding the abuse of the DMCA procedure, sure, there have been many abuses and I have stood firmly with the EFF and others in battling them. There are countless articles on this site dealing with those issues.
However, the vast majority of DMCA complaints are indeed valid. Even if you believe the worst and most skewed numbers, only a small fraction are invalid even technically, much less materially. The safe harbor protections have helped create the Web that we have today and have definitely been a net positive, something even the EFF recognizes. Furthermore, the law provides very strong penalties for those who knowingly abuse the process, look at the Diebold case, and I encourage those who are truly victims to use those laws.
So is the DMCA abused? Yes, but those abuses are more rare than most believe (you never hear about the thousands of legitimate takedowns, including the over 700 plagiarists I have stopped) and there are good protections in place against those who do abuse the law.
There is an obvious problem with the feed, I grant, thank you for bringing that to my attention, but there is a system in place and it is up to legitimate bloggers and Webmasters to follow the license and up to me to enforce the few rights I do reserve.
It is unfortunate that it came to this, especially since I've gotten to know the person behind the site and realize it was just a mistake, but these things do happen and, in the end, no harm was done.
> Why would you misuse DMCA to devalue your own content and stifle the growth of your product like this.
I have a very clear license on this site that gives away nearly all rights I have in the work I post. However, the few rights I do reserve I do enforce. If you do not enforce your licenses, then they become meaningless.
As far as you frequenting the site goes, I understand, that is your choice. But since you are commenting on a week-old post and most likely found this on Tech Dirt, it doesn't seem likely you were frequenting it before.
I've been posting these links a lot today, but before you argue the legality of RSS scraping, I would encourage you to listen to this podcast, where four copyright attorneys come to the conclusion that RSS scraping is likely not legal:
http://twit.tv/twil3
And my own analysis of it from 2006.
http://www.plagiarismtoday.com/2006/08/29/why-r...
Copyright law is complex in this area, but the implied license notion simply does not favor full RSS scraping.
Thought I'd chime in a bit – I got almost the same response when I sent a notice to HostGator many months ago. Basically responded and asked for a higher up and it was taken care of quickly. In fact – it was nearly the same response. I wonder if the same guy worked at both places?
Hm, that is odd. I've never had any problem with Hostgator ever but you're not the first to report issues. One person has said that they required a fax and another said they got a similar reply to you. Very odd. I'll have to follow up on this.
f someone commented in a libelous fashion here, and the party who was perceived as being harmed as a result of that content ended up contacting you, are you telling me that you would take action rather than redirecting the complain to the comment owner?