The Digital Millennium Copyright Act (DMCA) provides online service providers that host content for third parties a “safe harbor”, meaning that they aren’t held liable for copyright infringements committed by their users.
This protects hosts of all stripes, including YouTube, domain hosts, forum administrators and just about anyone else who hosts content from third parties. However, in return for that protection, hosts have to “expeditiously” remove or disable access to allegedly copyright infringing material after proper notification.
But how do you remove content from your service? While it might seem like a simple question, it often isn’t. Hosts have a varying degree of control over their services and may not always be able to trivially reach in and remove anything allegedly infringing.
This creates a real problem for both the subjects of DMCA notices and DMCA filers. The reason is because a notice for one small element of a site, perhaps a single post or an image, can result in the takedown of the entire domain or, in some cases, over a dozen domains.
So what are the options that a host has when it comes to removing content following a DMCA? There are many to choose from but but they generally fit into four broad categories.
1. The User Takedown
This method, quite simply, involves getting the user, the subject of the DMCA notice, to remove the content themselves.
This approach is the easiest method for many hosts and, if done well, can actually help foster a good relationship with their users.
For the user, this gives them an opportunity to remove the work and ensure that their site isn’t broken. They can find replacement images, rewrite text and generally make sure that they can continue working. For the host, they have to do nothing more than send a form letter to their customer and check back up in a few days to make sure they complied.
The problem, however, is when users don’t comply and then the host has to take direct action. They often times will either remove the work directly the best they can or, in many cases, suspend the account.
Most Common At: Domain hosts (Hostgator, Dreamhost, etc.) and other hosts where users have more control and flexiibility over their content. Here, host options are limited to either a user takedown or a much more drastic option.
2. The Surgical Removal
On the other hand, if a host has a large amount of control over the content posted, they can often times quickly and easily remove reported material directly and leave the user account intact.
For example, if one image in a gallery is infringing or only a portion of text on a page, the host may be able to jump in and edit out the relevant portions, leaving other (non-infringing) content intact.
While this method may be seen as generous to the user, it can create a great deal of problems, especially if it is done without transparency. Also, for some hosts, this may simply be too time-consuming, requiring a decent amount of hands-on work for each case.
Most Common At: Community sites (forums, social networking sites, etc.) where the types of content uploaded are limited and admins have easy access to it. This method is most common on sites that receive a relatively small amount of DMCA notices.
3. The Deletion
Sometimes a host will simply delete or disable access to the content and everything that shares its space. For example, removing an entire blog post, deleting a downloadable file or locking an entire threat in a forum.
The decision about whether to delete the entire thing or to surgically remove the infringing portions depends on many variables including how much control the host has, the likelihood of non-infringing material being removed and, in cases of community sites, the rules and standards of the larger community.
In cases where the entire work is an infringement, a complete deletion has the same impact as a surgical one. However, in many cases, hitting the “delete” key does a good deal of collateral damage.
Most Common At: Upload sites such as cyberlockers and video sites. Here the damage is minimal since, most likely, the entire work is an infringement. However, some blog hosts and forums also use the same method, raising potential issues.
4. The Nuclear Alternative
Finally, some hosts will take a DMCA notice to an extreme and suspend an entire account over a DMCA notice, no matter how seemingly small. While this can be useful in dealing with spammers and other widespread infringements (and is actually required under the law for repeat infringers), it can actually do a great deal of collateral damage.
For example, recently all of Edublogs nearly 1.5 million blogs went offline due to a DMCA notice nothat impacted only a small number of them.
However, there have been other, smaller cases of this including one individual who had over a dozen domains go silent after GoDaddy suspended his account and the list goes on.
This method has little benefit for consumers but is very easy for hosts to perform. Most hosts will un-suspend an account when the infringing material is removed but some find it easier to close the account and throw away the key, such as what happened to one Flickr user.
Most Common At: Domain hosts often turn to this method after working with their customer fails (though GoDaddy seems to start with this method) and many free hosts/services will not hesitate to suspend an entire account, along with all of the work on it, over a single notice.
Which method is the Best
As a general rule, there is no “best” method for removing infringing material. The most important thing is that it is removed.
However, I ordered the methods from the one with the least amount of collateral damage/harm to the user to the most. Generally, it’s a good idea to start with the first and, if you have to move down the list, to have a reason for it.
The reasons can be many, including that it isn’t practical, it isn’t possible or that the infringement is extremely severe/pervasive, but going down the ladder should require some justification.
A host, should not ideally default to just deleting accounts or suspending them after one notice. If less-intensive responses are available and appropriate, they should be used.
What this does mean is that a host should never suspend an account after just one notice? No. But it does mean they need to have good reason, including widespread infringement, other violations or the customer ignored requests to rectify the issue themselves.
For customers, you need to focus on not giving your host reasons to take stronger actions than necessary. Make sure your host can contact you at all times and that you resolve copyright, as well as all abuse issues, promptly. Also, if something is valuable to you, spend money on hosting it. The less you pay a host, the less motivation they have to help you and stand by you.
If you can work with your host and build a good relationship with them, you can go a long way to preventing a DMCA catastrophe.
All in all, when it’s done best, DMCA notices are a cooperative effort with all parties involved working together to resolve a dispute. At its worst, a single notice can, unintentionally, remove a large amount of non-infringing content from the Web.
Nobody wins when a notice goes too far and hosts, as the intermediary, have the opportunity to prevent that from happening. Though the host has to make sure that the content is removed, how they do that is critical and their discretion is a powerful tool.
So it’s important for hosts to be aware of their options and to use the methods that are most appropriate. Either an overreaction or an underreaction can create more problems and burdens down the road.
While this may mean getting away from a one-size-fits-all approach to handling DMCA notices, it’s clear that not all notices are the same. A complaint involving a few images is very different from one involving thousands of illegal downloads.
Understanding that is the first step to crafting a well-rounded DMCA policy.