The very nature of their business, in many circles, creates disdain for the industry and, as per the unwritten “fifth” fair use factor, they are seen as “evil”, thus harming their chances in court.

But the social stigma and discretion that comes with the industry has yet another potential problem, DMCA compliance. Because, while adult content enjoys all of the same copyright protections as other forms of material, the compliance with DMCA notices that an adult provider sees is, likely, much lower.

As someone who regularly files notices on behalf of adult content creators or against hosts specializing in adult material, I’ve noticed a trend where, while most DMCA notices see a compliance of around 95% or above, the compliance with adult content drops to 75% or below.

Sadly, this isn’t just an issue for people who are producing pornography as a lot of adult-oriented sites also end up hosting non-pornographic content. Think, for example, what happend to Lara Jade has her images were used on the cover of a porn DVD.

The problem, for the most part, isn’t content-neutral hosts (including file lockers) but rather sites aimed directly at hosting adult content. These hosts, in general, tend to be the least cooperative and, even when they do cooperate, often take the longest and do the least amount possible to resolve the issues.

The reasons for this, however, are straightforward, but the solutions are few and far between.

Why the Problem with Adult Hosts?

Adult hosts are an interesting situation. Where most hosts consider copyright compliance to be one of their most critical abuse issues, adult hosts put a lot lower priority on it. The reasons for that are many, including the following:

1. Bigger Concerns: Adult hosts have a myriad of laws they have to obey and, while many of them also apply to more content-neutral hosts, they are certainly less common issues and they are at much less risk than adult-oriented hosts.
2. International Issues: Adult-oriented hosts are much more likely to be out of the US/EU zone that honors takedown requests. Many can safely balk at removal requests as local laws don’t require any action or, at the very least, they know they are out of reach of any potential legal action.
3. Ulterior Motives: Many of such sites actively depend on infringing material for their content base and revenue, thus, the risk in not removing content is less than the damage to their bottom line doing so would cause.

While most adult-oriented sites do still comply with DMCA notices and other copyright complaints promptly, it unfortunately means that a disproportionate number don’t.

Resolving this, however, is not an easy matter though there is at least one tool for gaining leverage over uncooperative hosts.

Dealing with Uncooperative Hosts

Dealing with uncooperative adult hosts really isn’t much different than dealing with other uncooperative hosts. As per my Stopping Internet Plagiarism guide, the best next action is to take the issue up with the search engines and get the content removed there.

Search engine DMCA notices have a series of effects. The first being that it gets the content removed from the various SERPs, reducing the number of people who see it and access it. Also, domains that accumulate a lot of these notices are often reduced or even dropped from the search engines, something that most of these sites fear.

That, in turn, makes these sites much more cooperative in removing the infringing content. In several occasions, I’ve seen content that the host refused to remove infringing material but took action after getting a notice from Google about a filing there.

In short, your best bet is to take the issue to a “higher power” and, over time, it’s likely that these sites will learn to respond better on the first notice.

Bottom Line

In the end, while it’s adult content creators that certainly have the most to worry about, they aren’t the only ones either. Since non-adult material routinely winds up on adult hosts, it’s an issue for almost every type of content creators.

While there isn’t necessarily much that one can do about these issues, at least not from a practical standpoint, being aware of them makes one better able to deal with them and less likely to get bogged down in them.

That, in turn, can help you be more effective and more efficient in protecting your work online.

However, hosts don’t like getting DMCA takedown notices. Not only does it require some manpower to process and and execute, but customers who have them filed against them often get upset and blame the host unjustly.

Hosts can deal with this problem one of two ways. The first is by streamlining the DMCA process and better educating their customers/clients about copyright complaints, the other is trying to frustrate and limit the number of people who file notices.

Though many hosts take the first approach, often in a bid to discourage their servers from being used for infringing activities, others have taken the alternative approach. While this might be a good thing in cases where it stops someone from filing a false DMCA notices, in cases where there are serious infringements taking place, this can be very frustrating.

As someone who has worked with hundreds of hosts filing thousands of DMCA notices, here are just some of the tricks I’ve seen and, more importantly, how I’ve overcome them.

1. Fax or Mail Only

The DMCA is very clear that an electronic signature is all that’s required to sign the notice and the U.S. Copyright Office makes sure that every host that registers their agent with them has an email address. Yet, when trying to find a DMCA contact on a host’s site, many only list the mailing and/or fax address, requiring that you send it in that way.

How to Overcome It: First, you may be able to find an email address on the U.S. Copyright Office site. If you can’t, you can actually send a fax for free if you create the notice in a Word file. It’s an extra step, but not a particularly painful one.

2. Hiding the Contact Info

Most hosts will place the DMCA info either in a special “legal” section, in the terms of service itself or on a similar page of their site. Some, however, work hard to bury this information, often either putting it on pages you don’t expect or making it a link off of a page that is hard to spot.

How to Overcome It: First, use your browser’s find feature and look for the word “copyright”, you’ll likely find that you can locate the information that way. Failing that, Google for the host’s name and either “DMCA” or “copyright” as that will often turn up the results. If that fails, go to the link above for the USCO site and see if they have a filing there.

3. Bounced Emails

Often times, either out of malice or simple mistake, the email addresses that hosts set up to receive DMCA notices stop working. This can be especially annoying if you’ve had to spend a lot of time finding the aforementioned email and sending off the notice.

How to Overcome It: As with other things on the list, check the USCO filing for a different address or look again on the site if you got the email from there. If that fails, send the notice to their abuse team, usually just abuse@, and make a mention that the email address for such notices is not working. Usually, if you do that, such notices are passed along and accepted

4. Repeat the Notice

A lot of hosts, especially those who who demand fax or mail filing, may come back and request another version of the notice, usually one that’s in clear text. While this is understandable, especially for long notices, it can be easily avoided by either having a DMCA form, as Google is doing now, or accepting emailed notices. However, several times I’ve gotten requests for a cleartext version of a DMCA notice I had already emailed, meaning I essentially had to repeat the exact same notice.

How to Overcome It: Be aware that this happens and is increasing. Make sure the email you provide on your notice is one that you check regularly and doesn’t have too much spam protection on it. As long as you have copies of everything you do, complying with these requests is usually a lot easier than battilng them.

5. The No Follow Up

A lot of hosts, after sending a DMCA notice, will pass it along to their customer and give them a certain number of days to respond and remove the work themselves. This, to me, is a fair policy that prevents hosts from having to close whole accounts over a minor infringement. However, a lot of hosts either don’t or forget to check up on the situation after time has expired. Leaving the work online well past when it should have come down.

How to Overcome It: Don’t trust hosts to follow up on your notices, do that yourself. If you must, create a spreadsheet and check to make sure that every case is handled in order.

Bottom Line

Hosts, sometimes accidentally and sometimes intentionally, put up blocks that can prevent you from sending in a proper DMCA notice. Knowing what those blocks are and how to get around them is crucial if you’re going to be sending them out in any number.

All in all, most of the common blocks aren’t that difficult to get around, though they can be very frustrating to inexperienced filers. As such, it’s best to learn the lessons on how to deal with them before you start searching rather than scrambling to find it later.

A little knowledge can save you a lot of time and help you be much more effective with your work.

When I started Plagiarism Today, one of the things I wanted to do was draw attention to hosts that were mishandling DMCA cases, either by not responding to legitimate complaints of infringement or overreacting to such claims, especially dubious ones.

Though the law provides legal mechanisms for dealing with such providers, as a small copyright holder, using those tools is impractical in the majority of cases and the site was an opportunity to get answers in a public arena when I couldn’t get them in a private one.

However, over the years, this blog has grown and things have changed. I work directly with many hosts as part of my copyright consulting practice and am fairly well known among abuse teams. Though I’m sure many agents and abuse personnel don’t know me, it’s grown difficult to know when my experiences are representative or when the fact I run this site has an effect.

So, I depend increasingly on readers to tell me their stories involving DMCA notices and other copyright/plagiarism issues when it comes to Web hosts.

On that note, I want to issue an open call, if you’ve had a bad experience with a host, one where you filed a proper notice or had a bad notice filed against you and your host treated you poorly, let me know. Please send me an email with the information and let me know about it.

Likewise, if you’ve had a particularly good experience, I’d like to hear about that as well.

To be clear, these stories will be for future articles on Plagiarism Today and I will need some verification as to their authenticity, most likely relevant emails. Also, I will try to talk with any hosts before calling them out on this site, in an attempt to understand both sides.

So, if you feel you’ve been wronged by a host, or even a search engine/ad network, now may be a good chance to get some answers. I’ve found that this site is a great way to get hosts to respond when they won’t in private and has been very effective at getting hosts to change some of their policies.

So what are your horror stories? I’m interested to hear them.

Since locating a host is one of the most difficult parts of dealing with copyright infringement or spam, have repeatedly highlighted tools that have helped users detect who the host of a site is. I’ve specifically mentioned Who Is Hosting This?, a great tool to make finding the host as simple as possible, and Domain Tools, a site for finding out a wide variety of information about a site for those with more experience.

However, while doing research for another article, I ran across an old Firefox and IE toolbar by Netcraft, a British Internet services company that specializes in security, particularly with phishing-related issues.

Though it is called Netcraft Anti-Phishing toolbar, it provides a very unusual and powerful feature for those that deal with content theft and spam issues, namely on-the-fly hosting and country information about any given site.

In short, if you install the toolbar, for every site you visit, you’ll see the host of the site displayed in your browser toolbar, no need to use a bookmarklet or paste the link into another site.

Though the toolbar is primarily phishing oriented, providing information on the age of the domain, the estimated rank, a site report and a “Risk Rating”, it could also be very useful for those that are either curious about hosting matters or are constantly looking up hosting information for abuse complaints.

However, there are a few caveats to remember if you decide to install it.

Words of Warning

There are a few things to keep in mind as you use this toolbar and important considerations to weigh to decide if it is right for you:

1. Privacy Issues: The toolbar does do some very basic tracking in order to compile its rankings. Though Netcraft says none of this is personally identifiable, you may wish to read through their FAQs to ensure that you agree with their policies.
2. Some Inaccurate Results: Though any automated host detection system is going to make mistakes, Netcraft lacks some of the changes and improvements made by Who Is Hosting This in terms of detecting hosts that use other networks, such as Hostgator. This means that Netcraft will detect most networks well but isn’t a complete replacement for other services.
3. Strange Linking: Clicking the link in the toolbar doesn’t take you to the host’s home page or to a page about the host company, rather, it takes you to a generic page about the site itself.
4. Incompatibility: The toolbar is rather old, not updated since May, 2008 and doesn’t work out of the box with the new Firefox 3.1 betas. I was able to get it to work with Nightly Tester Tools and it seems to be moving along fine.
5. Screen Real Estate: Obviously, any tool bar you install is going to take away some from your browsing area. If you aren’t going to use this toolbar heavily or don’t need the extra security features, you probably won’t wish to bother with it.

None of these problems will likely be a deal-breaker for those that need either the security or the host detection elements of this toolbar, but they should be weighed carefully before hitting “install”.

Bottom Line

I’m likely going to keep the toolbar installed for a while. I am interested in host-related issues both as someone who files abuse reports and DMCA notices, but also for personal curiosity. I also like the fact that it plainly shows what country is hosting the site and the age of the domain.

All in all, with this toolbar, when I see a site I need to take some form of action against and I have the toolbar installed, I’m able to form the beginnings of the strategy right away. The information provided lets me determine if the site is a likely spam blog what country it is hosted in and, in most cases, who is hosting it.

Though it isn’t for everyone, for those that need this information, it is a powerful tool and a great time saver.

Sample Information

But even though the process of sending a notice is practically universal, how it is dealt with can vary wildly. Some hosts seem to ignore them, others act immediately and most lie somewhere in between.

This raises the question: How long should it take for a host to act on a DMCA notice?

The law is very vague and hosts themselves seem to disagree, but there are a few ways to get a rough idea.

What the Law Says

If you’re looking for clarity in this matter, the law itself is not likely the place you want to look.

The law, in §512(c) says that hosting providers should work to “expeditiously” remove infringing material after they receive proper notification. There are no hard deadlines set and the term itself gives hosts a great deal of breathing room to decide for themselves what “expeditious” means.

What this means in the field is that there is a wide range of response times from almost instantly, when dealing with sites such as YouTube, and several weeks, such as many Microsoft DMCA notices. This is due to a variety of situations including different amounts of legal risk, financial situations and hosting structures.

For example, YouTube was able to construct an almost-instant takedown system due to the its structure (only one site, one media kind and all files easily identified) and was pressured to do so by its legal wrangling. Microsoft, on the other hand, has many different sites, multiple kinds of media and less legal incentive. Thus, investigation time takes longer and their incentive to invest in it is weakened.

As a result, there is a huge disparity between how the two handle such notices and it is unclear where the line for “expeditious” is drawn.

What Is Most Common

So what is the most common time frame for a DMCA notice to be handled? Having worked with many dozens of Web hosts it’s very hard to pin down a good average as they tend to be so varied. I’ve seen them handled as quickly as 20 minutes and as long as a month. But there does seem to be a common “hot zone” for when the content is likely to go down.

For most Web hosts, including paid domain hosts and free ones (such as social networks), that zone seems to be 24-72 hours. Very few seem to go down within one day of the notice and, after 72 hours, the likelihood of it going down at all begins to drop. After about 96-120 hours, the likelihood becomes almost zero.

However, there are exceptions to the rule. One possibility is that the host allows its users the chance to remove the content themselves to avoid being banned outright. If that is the case, the host will likely give the owner to the account 48-72 hours to take the content down, making it so that, with time to process the claim, it could be well over 96 hours, even on a fast-acting host.

Also, there are cases where the DMCA notice is sent to the the datacenter operator but has to be forwarded on to the actual operator of the server, who in turn has to deal with their customer. This happens routinely when you have sites such as Hostgator, which hosts their servers in ThePlanet’s datacenter. That process can greatly slow down a notice.

Finally, you always have to account for weekends, holidays and other days where the DMCA agent might be out of the office. After all, save in a few cases, these notices are professed by human beings that, for the most part, work traditional hours and days.

Another Perspective

Another way to look at is to take a glance at the tools that track copyright infringement. They typically allow their users to monitor a takedown notice for compliance and set up some form of an alarm for when compliance is not reached after X number of days.

The default setting for most of these applications is 14 days though they can range (or be set) between 30 days and 7 days. Typically, earlier than 7 days, none of the applications will send any alerts.

This is not to say that this is an ideal setting by any stretch, especially for single cases that are more urgent, such as a scraper that is hurting ones search engine rankings, but it gives us an idea what those that send the largest numbers of notices are thinking in terms of when they want to be notified.

Conclusions

So the question remains: How long should it take for the content to be removed following a DMCA notice?

The most common is under 72 hours (barring holidays) but typically one should not be concerned or interested in taking any further action until at least a week has gone by. At that point, it is worth taking a look at the situation, seeing if there might be some extenuating circumstances and, if appropriate, refiling.

As far as what the law says, that is something we will have to wait for a court ruling on. Right now, the term “expeditious” is just as vague to you and me (in this context) as it to attorneys.

Until a judge rules on this, we likely aren’t going to have any good answers.

photo credit: gruntzooki

Whenever I work with Webmasters and bloggers to help them file DMCA notices to get their content removed from copycat sites, they inevitably have a lot of questions about the law and how to use it. Though I am not a lawyer, I do my best to answer them.

However, to save time and effort, as well as help those who didn’t want to ask, I’ve compiled a collection of FAQs about the process with my answers to them.

Hopefully this FAQ collection will answer most of your questions about the DMCA process and, if it doesn’t, please feel free to ask your question in the comments below so it can be added.

What is a DMCA Takedown?

The Digital MIllennium Copyright Act of 1998, among its many parts, granted a “safe harbor” to Web hosts and search engines for infringement perpetrated by their customers. This means that hosts can not be held liable for any copyright infringement that their customers perform so long as they meet certain criteria.

One of the criteria is that they have to “expeditiously” remove allegedly infringing material when properly notified. A DMCA notice, also known as a DMCA takedown, is simply a letter that fulfills the requirements of the DMCA demands the removal of the work either from the search engine or the host.

Hosts, in order to preserve that safe harbor, need to comply with properly-filed DMCA notices.

Should I file with Search Engines or Hosts?

There are different schools of thought here. Some feel that, by filing with the search engines and waiting to file with the hosts until the search removal is complete, you can more completely wipe out an infringing site and prevent it from coming back.

However, search engines are slow to respond. Google can take several weeks and has complicated notification requirements. The quickest route is almost always to file directly with the host and have the work removed directly. It is also by far the easiest way, requiring just one notice, as opposed to five or more the other route.

Still, in most cases the decision is up to the filer. However, if the site is hosted in a country that does not have a takedown provision, search engine removal may be the only option.

I Am From Another Country, Can I Use the DMCA?

Yes. The DMCA allows all copyright holders, no matter where they are located, to use the takedown process. THe jurisdiction of the law is based upon where the site or search engine is hosted and the vast majority of both are within the U.S.

I have seen cases where a British man used the DMCA against an Australian plagiarist simply because the plagiarist hosted the infringing site with the U.S.

What if the Site is Hosted in Another Country?

The procedure for requesting a takedown was created by a WIPO treaty that mots countries are signatories to. However, many have not fully implemented the treaty and, as such, have no such procedure.

However, most countries that host a large number of sites, including the whole of the EU and Australia, have a process in place that functions very similar to the DMCA.

In many cases, sending a DMCA notice will work, even if the host is foreign. However, even hosts in countries without takedown procedures consider copyright infringement to be a violation of their terms of service. Therefore, even in those cases, you can often file an abuse report and secure removal of the site.

Can they Get the Work Restored?

One who has a DMCA notice filed against them has two choices for restoring the site. First, they can move to a different host and restore the site that way. Second, they can file what is known as a counter-notice and secure the return of the work.

A counter-notice is much like a DMCA notice but in reverse. Where a DMCA notice claims that the work is infringing, the counter-notice claims that it is not and demands that it be restored. Unless the person who filed the original notice files suit and secures an injunction, the work will be reposted after a waiting period.

Counter-notices, however, are extremely rare, especially if the DMCA notice was clearly justified. Such notices open up the person filing them to a slew of legal problems and, in general, it is easier to just move on.

Most cases where a site is restored involve moving the content to a new host.

How Many Should I Report?

There is no set answer to this. You can send as many or as few as you want. Just remember that any you don’t include you can always file another notice regarding later, in the event that the entire site isn’t taken down.

Still, most DMCA notices include between 5-10 items whenever a large list is involved. Some will include far fewer and others will do one item per notice. However, for the most part, it’s better to find a balance.

How Long Does it Take to for a Response?

The answer varies. Some hosts will act in less than 24 hours, others will take over a week. The more typical timeframe is between 48 and 96 hours.

However, it is important to note that hosts will typical secure removal of a work and then wait a day or two before sending an email to confirm the takedown. The reason is that they want to ensure that all cached copies of the work are cleared to avoid any confusion about the work still being up.

Will the Host Shut Down the Whole Site?

This depends on the circumstance and on the host.

If the site is largely composed of infringing material, such as with a spam blog, the host is likely going to just cancel the whole account. If the infringing work is just one or two items in a larger site, they will likely have owner of the site take down the specific items or, in some cases, surgically remove the works themselves.

Some hosts, such as Myspace, are known for surgically removing infringing works and almost never shut down an account on DMCA complaint. Others, such as iPowerWeb, frequently shut down whole sites.

To improve the odds of a domain being shut down, if you have more items to include in your DMCA notice, do so. If you reported the site once and the works were surgically removed while other infringing items remain, report the other works in a second notice.

Under the DMCA, hosts are required to ban repeat infringers from using their service.

Can I Get Into Trouble?

In order to file a DMCA notice you need to swear under penalty of perjury that you have a “good faith” believe that the work is infringing and that you are the copyright holder or an authorized agent.

If you file a knowingly false DMCA notice there are many potential legal consequences, some of them very dire. However, there is much debate and even conflicting rulings about what constitutes a “good faith” belief and where the bar is placed for meeting that test.

Generally speaking, though I am not an attorney, if you stick to cases of clear-cut copyright infringement such as scraping, plagiarism, etc. and avoid cases that raise fair use issues, the risk of trouble is relatively low.

Sadly, even cases where the DMCA notice was clearly false rarely result in as much as a counter-notice due to the legal uncertainties. This has enabled much of the DMCA abuse we see and has contributed to the reputation of the law as being one used to silence critics or stop fair use.

Is There Anything Else?

The DMCA is a powerful tool and should be used carefully. Be responsible with your plagiarism fighting and be cooperative with hosts as much as possible.

If you have any questions, feel free to write me either via the contact form or sending me an email to jonathan at plagiarismtoday dot com.

To test, look at the footer of the site and see if you seeing the following message :This is the NEW HOST

If you see that, you are being pointed to the new server.

This is actually just a stop-gap measure. Latency issues and storage problems on the old host were causing frequent outages and Google was actively throttling down the amount of traffic it send and how often it crawled the site. The new server should be much faster but it is only a stepping stone so I can move to something more permanent in a few weeks or months.

I have some good friends I am seeking to host with but I needed to buy some time to make that happen. This should do that job nicely and the process of making this move should make future ones MUCH easier.

Please let me know what you think about the new server, if the site is loading faster/slower for you and if you have any issues. I took the opportunity to also do a good amount of house cleaning and removed some plugins that may have been dragging the site down.

Thank you very much for your patience and for your help with this!

Needless to say, the stories ran the gamut from wonderful, helpful agents to nightmare tales about excessive hoops to jump through and unanswered emails.

I am wanting to prepare a series on abuse and DMCA agents. I’ve done some of it in the past, including retelling some of my personal horror stories, but after three years at this site of running this site, I sense that my experiences are no longer the norm (this bolstered by the fact I am on a first-name basis with several DMCA agents).

So, with that in mind, I want to hear your stories. Specifically, I am looking for any of the following:

• Stories, good and bad, about dealing with DMCA agents at various hosts/search engines.
• Interactions with various Web hosts, good and bad, in reporting spam.
• Incidents where your site has been reported for abuse and/or copyright infringement and what happened afterward.
• Information on the time it takes to obtain a response from Google or other search engines on DMCA mattes.
• Finally, any abuse or DMCA agents that have interesting stories about either really good or really bad filers.

If you have any of those items, please either leave a comment to this post or send me an email with the details. This is a great opportunity to get help with a host that has been giving you trouble or give praise to a company that went above and beyond in helping you out.

If I decide to write about your case in the future, it will only be with your permission and you can choose not to have your name attached to it. Also, I will work to certify all stories as best that I can and will not publish any claims that are unverifiable.

Thank you in advance for your help with this and please feel free to spread the word of this open call around. I’m eager for anyone’s input so feel free to get your friends involved if you think they might have something of interest.

I look forward to hearing what you have to say!

The proposal calls for Linen Lab to periodically publish, among other things:

• The number of notices filed
• The average delay in action on a DMCA notice
• The number of takedowns executed
• The number of counter-notices filed
• The number of takedown notices that resulted in a putback

But while the idea is especially good for Linden Lab, whose DMCA policies have been under pointed fire in recent months, it is an idea that can easily be expanded to all Web hosts.

It is an proposal that those both in favor and against the notice and takedown provisions of the DMCA will likely agree on and something that could bring a great deal more understanding the entire process of dealing with copyright infringement on the Web.

The Importance of Transparency

One of the major problems with the current notice and takedown regime is that a copyright holder can send in a DMCA notice and track the response to it but no idea where that notice fits into the larger picture.

How many notices does a host receive? How long, on average, does it take them to reply? How many do they discard for being incomplete? How many counter-notices do they receive? These are all questions that are typically closely-guarded secrets for Web service providers.

Many fear, rightly or wrongly, that providing this information could result in legal difficulties should a DMCA dispute go into the courtroom.

However, this has made understanding the full impact of the notice and takedown system almost impossible. With few hard facts, we are left largely with just anecdotal evidence of DMCA abuses and successes. Unfortunately, this evidence is completely useless when trying to understand the larger picture and obtain information upon which future policy may be written.

Even I, having personally sent hundreds of DMCA notices to many dozens of hosts, have only a tiny fraction of the DMCA picture. My experience is colored sharply the types of cases I have handled, all of which have been plagiarism-related, and the hosts I have worked with.

Despite the years I’ve spent working with the DMCA and hosts on copyright matters, my information is, at best, an educated guess. Sadly, that’s all anyone who does not work for a Web host can provide as we can not see what takes place behind the scenes.

It is a frustrating problem and, sadly, the attempts to address it have largely failed.

Past Attempts

The Chilling Effects database is probably the best-known attempt to provide DMCA transparency.

The idea was to provide a site that hosts and search engines could submit DMCA notices to and have them published publicly (minus personal information). This would, theoretically, allow researchers to access the database and draw conclusions about how the DMCA was being used.

The idea, initially, received a great deal of support and key Internet players, most prominently Google, promised to send all of their DMCA notices to the database.

However, the database has fallen into hard times. Few new letters are published, the most recent on March 5 of this year, and most of the ones that are published are controversial ones such as the Air Force DMCA notice and the recent moves by the NFL.

Google, in their auto-reply to submitted DMCA notices, still says the following:

“Please note that a copy of each legal notice we receive is sent to a third-party partner for publication and annotation. As such, your letter (with your personal information removed) will be forwarded to Chilling Effects for publication.”

But despite that, none of my notices in the past few years have appeared in the database. In fact, only one notice from me appears at all and it is from 2005.

Chilling Effects was used for one study back in late 2005. The report, authored by Jennifer Urban of the USC Gould School of Law, found that nearly 1/3 of all DMCA notices were improper in at least one way. However, as I pointed out in my original article, the use of Chilling Effects may have biased the findings due to the nature of the service.

Unfortunately, the full study has not been released as of this writing and is listed as being “forthcoming” on Urban’s faculty page.

Outside of Chilling Effects and anecdotal accounts from hosts, such as Dreamhost’s recent blog entry on the topic, there has been very little in the way of hard data about how hosts respond to DMCA notices.

A Proposal

Clearly there is a need for hard data in this area and the only people that can provide it are the hosts and search engines. Therefore, there is a need for a broad push to improve transparency in the DMCA process.

However, that being said, a database of actual notices, such as Chilling Effects, is likely not the way to go. Such a database would either be incomplete or too large to be practical.

However, even if we had nothing more than numbers and general information about policies, it would provide us a much better understanding about the DMCA process than what we have now. To that end, Merideth’s proposal is fairly sound.

The idea of encouraging hosts to provide regular updates as to their DMCA actions makes sense. It not only helps copyright holders understand how the the host responds to notices, but it helps users of the site know what to expect should a copyright issue arise.

However, I would make the following changes to Merideth’s proposal to make it more applicable to practical for hosts:

1. Make the Report Quarterly: Monthly may or may not be practical for Linden, but most Web hosts would be doing good to create just a quarterly report. That should be fine in most cases.
2. Eliminate Information That Isn’t Necessary: Initially at least, we should focus on the core information. That would include the number of notices received, the number discarded, the number that resulted in a takedown, the average time between receipt and takedown and the number of counter-notices received. If hosts are comfortable providing more information, that would be great, but since most are not under the level of scrutiny Linden Lab is under, it makes sense to request less.
3. Add Policy Information: Right now, what happens after a DMCA notice is filed is something of a mystery. From talking with hosts I know how some handle it, but there is precious little information about how a notice goes from a submission to a takedown. This might make a natural addition to all Web host’s copyright pages and would be largely static unless there was a change in procedure.

In addition to those changes, I would also suggest that hosts provide a random sample of the DMCA notices they received to an online database similar to Chilling Effects. It would not be necessary to send every single one, just a statistically significant percentage. Hosts could, possibly, send every twentieth or hundredth notice to the database depending on how many they receive.

The bottom line though is that any information we can get that goes beyond the anecdotes and horror stories we have to work with will be a drastic improvement over the current situation.

Conclusions

In the end, it is unlikely that hosts will release this kind of information voluntarily and even less likely that any kind of legislation will require them to do so.

Though those of us who are interested in copyright law, both for and against the notice and takedown provisions, would greatly appreciate transparency from the hosts, these types of statistics are considered closely-guarded secrets and will almost certainly remain that way.

In addition to legal issues that may arise from releasing such information, especially if a host is slow or unresponsive to DMCA notices, many fear that it will color customer perceptions if it is known just how many notices they receive and act upon.

Sadly, it is an area where practical business decisions may overshadow the need for good information and good policy. Few hosts are going to spend time and money to publish information many would consider unsavory, no matter how important it might be.

Still, it would be nice to see hosts take initiative in this area and do something to help others understand just how the DMCA is used. If a host wants to criticize the current law, then giving the public and the government the information to make sound decisions is the first step to fixing the problem.

Without that, then there is pretty much no hope of the law ever changing.

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.

Conclusions

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.