The cyberlocker scene, for the lack of a better word, is a bloodbath and it doesn’t show signs of letting up in the immediate future.

However, for right now, here’s a sample of what’s going on as of today, January 24th.

(Please note that this list is the most complete I can make it, if I don’t provide a particular link for a claim, I got the information from the above Torrentfreak article or the comments. Leave further sites to list in the comments and I will add them to the list.)

Shut Down

• x7.to
• Uploadbox
• PDFCHM
• Enterupload (link)
• Minichan (Disabled upload service)

Stopping 3rd Party Sharing

• Filesonic
• Fileserve
• Filejungle
• Uploadstation

Widespread Banning and/or Deletion (Reported)

• Hotfile
• Mediafire (link)
• Filepost
• Library.nu
• Oron

Ending Affiliate Program (Rewards for Uploaders)

• 4shared
• Filesonic
• Fileserve
• VideoBB
• VideoXer
• FileJungle
• UploadStation
• FilePost

Blocking US IP Addresses

• uploaded.to

What’s clear from this ever-growing list is that the cyberlocker scene is in full-on panic mode. The shuttering of Megaupload and the arrests of its owner and employees has shaken the industry deeply. Only two sites, Mediafire and Rapidshare, have remained truly defiant saying that they are legitimate businesses not built on the backs of piracy (though, as the list above shows, Mediafire has apparently been involved in some mass-deletions).

So what does this shakeup mean for the cyberlocker scene and, more importantly, for you both as a user and a content creator who may have been infringed using one of these services? The answers are still being settled but there are a few things we can be certain of now.

What’s Happening to the Cyberlockers?

Over the past few years, the cyberlocker scene has grown by leaps and bounds. Again, acccording to Torrentfreak, in August of 2011, 7 of the 10 largest file sharing sites were cyberlockers, including four that were larger than The Pirate Bay. However, these were just the tip of the iceberg as the cyberlocker scene had also grown wildly in the number of sites with literally hundreds of smaller and often fly-by-night competitors opening and closing.

This growth was propelled by affiliate programs that rewarded uploaders for files that were downloaded m large number of times. While it didn’t matter what the file was, meaning it could be a legitimate file, the most popular content on these services tended to be infringing content, in particular from major copyright holders. These programs helped not only ensure a steady stream of incoming files to share, but a built-in promotion engine that drew links to these sites.

Though some of these sites have attempted to be as legitimate as possible, many, if not most, attempted to straddle the line between what was legal and illegal. As I pointed out in my previous article on Megauploads DMCA policies, this would often involve deceptive tactics to avoid fully removing infringing work, not banning repeat infringers and more according to the indictment.

However, with the closure of Megaupload, the practices of the industry are under a very intense microscope. After all, Megaupload was not just another file sharing service, it was the leader at the time. This has left many of the other services to wonder if they might be next.

The problem is that, all we have against Megaupload is an indictment, not a court ruling. Without a ruling, there’s no way to know what, if anything, Megaupload did that was actually illegal. As such, the other sites are merely guessing as to what they need to do to stay out of the crosshairs of the FBI and other government agencies.

This, in turn, is causing a period of great turmoil where it seems to be “every man for himself” in the industry and everyone is doing what they think is best for their site and their business.

What This Means for Cyberlocker Users

If you’re a user of cyberlocker sites, whether for legitimate or unlawful purposes, the immediate future is one of great turmoil. Even the services that don’t appear to be affected right now are, almost certainly, paying much closer attention to things behind the scenes and will be working more actively to address copyright issues. Likewise, many others are still likely getting legal advice and may be making decisions over the next week or two.

In short, these are mostly just the sites that made immediate reactions, other changes and shifts are likely to follow.

While the situation will settle down some in the coming weeks, there won’t be any real resolution or stability until the Megaupload case produces some precedent, offering some practical guidance to similar sites.

In the meantime, these sites know they are under the gun of various government agencies around the world and that their file sharing scene is very much vulnerable to government action.

What This Means for Content Creators

For content creators, large and small, who are working to get unlawful content off of cyberlocker and other file sharing sites, you’ll most likely find that the companies behind these sites are a bit more cooperative than usual. Not only are they proactively deleting infringing content in many cases, but I expect most will pay closer attention to their takedown processes.

The longer-term impact is going to depend on what happens with the Megaupload case once it reaches court. Given the resources available to Dotcom and his company, it seems likely that they will put up a good fight. Even if they end up losing, any points they win on could become green lights for the rest of the industry.

However, in the mean time, we are going to see a divide in this industry, or rather, the sharpening of an existing divide. There’s going to be a growing division between the sites that work to remain legal and those that openly flout the law. We are already seeing this somewhat with the building of a cyberlocker by supporters of Anonymous and we’re likely to see others jump in as well.

Simply put, as Dotcom proved, the money is simply too good to stay away and others will inevitably jump in while taking extra precautions to avoid Megaupload’s fate. In that regard, the cyberlocker industry will largely mirror Bittorrent sites, which followed a same pattern following a series of Bittorrent raids and seizures in the early-to-mid 2000s.

In short, if you’re planning a major anti-piracy campaign that involves working with cyberlockers, now is likely the best time to get started.

Bottom Line

To be clear, this is not the death of cyberlockers, not for legitimate uses and not for piracy. While it’s true that methods of swapping files have come in and out of vogue over the years, the old methods are still around. People currently trade files regularly on Usenet and even buy bootleg DVDs, there’s no reason why this method of file sharing will go away.

The only thing that’s going to push it into the background is a different method of sharing content that is designed to address the issues with cyberlockers. While there’s nothing on the immediate horizon, as the Napster shutdown showed, a new solution is never far behind. So, even if cyberlockers are fundamentally weakened to the point of near-uselessness, it will only be the calm before the next storm.

The best thing any content creator can do is not look at what happened yesterday but focus on what’s going on today and what will likely be going on tomorrow. That’s the only way to get even remotely ahead of this never-ending curve.

Panic Button Photo Credit: BigStockPhoto.com

It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

Summer may be upon us but that doesn’t mean that the slow season for copyright news as started just yet. We have a lot of major stories this week including legal setbacks for both Righthaven and the U.S. Copyright Group, a challenge to the ICE domain seizures and a possible deportation over copyright infringement. It’s been one crazy week for copyright news and this is one episode of the Copyright 2.0 Show that you do not want to miss!

This week’s stories include:

• Righthaven Has no Grounds to Sue, Faces Sanctions
• ICE Domain Seizures Challenges
• U.S. Copyright Group Gets Subpoenas Revoked
• Warner Bros Threatens to Photoshop Out Tattoo
• TV Shack Admin Fights Extradition
• Much, Much More!

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

So how do you enforce your TOS without getting drawn into “he said/she said” conflicts and wasting your time settling petty squabbles? There are a lot of ways. Myspace, for all of the flak it takes, does a reasonable job. However, there are a lot of hosts that manage to screw it up in dramatic fashion, taking steps that, in their desire for “efficiency”, makes it almost impossible to file a legitimate notice of abuse, be it spam, copyright infringement or something more serious. So what are the worst steps for handling abuse? Here’s my short list.

5. Let the Moderators Handle It

The Big Idea: You’ve started a small site that has grown into a large community. Whether it is a forum, a social networking site or some other community-oriented site, you’ve watched it grow into something beautiful. The problem is that it has also grown outside the bounds of what you can effectively police yourself. So, in a bid to keep costs down, you recruit some of the more faithful members to be unpaid employees, moderating the different areas of the site. Great. Now, whenever someone comes to complain about an abuse issue, regardless of what it is, you direct them to find a moderator and let them handle it. This means you can kick back and focus on things such as advertising, server issues and other “big question” items.

The Problem: Moderators are great tools, but relying on them solely is foolish. First of all, moderators are not always reliable. As unpaid employees, they can come and go at their leisure. The bigger problem though is that, while Moderators are great front-line defenses when dealing with members, how does this help non-members who would have to register to even speak with one? Your posters don’t just abuse one another, they abuse others on the Web, especially when dealing with copyright matters. This is why many well-intended Webmasters feel the need to go over the head of forum admins and report them to their host.

A Better Solution: Encourage your members to use your moderators but make contact information for you or another direct employee available in the non-members area of the site. Also, make sure to register yourself, or someone else, as the DMCA agent for your site at the United States Copyright Office Web site.

Discourage members from using this frivolously, possibly providing punishments for anyone who does, but keep it there for people outside your site that might need it.

4. Use an Email Form

The Big Idea: Giving out your email address is dangerous. It can attract email spammers or become a magnet for angry users. To deal with this, many hosts, especially mid-sized ones, have begun using email forms and, specifically, ones tailored for abuse. One the surface it seems pretty cool. You can use a drop down to indicate what kind of abuse the person is reporting (being sure to leave a place for “other”), clearly explain the types of problems you won’t help and, in some cases, even help people file a proper DMCA complaint so you don’t have to throw back the notice and waste time on the back and forth. What can go wrong?

The Problem: Well, the first part of the problem is that email forms are often abused by spammers too. This means that many use CAPTCHAs and other systems to make it more robot-proof but also frustrate humans. However, the larger problem is that lawyers, law enforcement and others that might approach you with very serious issues are loathe to use forms as they don’t create a paper trail on their end. They prefer, email, fax or other means that they can verify. Unhappy attorneys create problems and you don’t want any problems.

A Better Solution: Like moderators, forms are great but the problem is relying on them solely. For most abuse complaints, a form is a great shortcut and can streamline the process, but if you can’t accept complaints over email or fax, there is going to be an issue at some point. Once again, use your form but also offer at least some email contact on your site and register your site with the USCO for optimal accessibility.

3. Fax Only

The Big Idea: Forget about having people send emails, using moderators or even using forms to contact the admins on abuse matters, give them a fax number and leave it at that. People with serious issues will use the fax but others will simply give up and leave. It’s a great way to weed out those who are serious about filing a complaint from those who are just being trivial and wanting to report something stupid.

The Problem: Though eFaxing has brought fax to the desktop, fax machines themselves are going the way of the dodo. Requiring someone to send a fax not only requires them to print out the letter, but also find the fax machine. Even if someone is lucky enough to have a printer and a fax machine in their home or office, it is still a series of extra steps that are not necessary.

However, it gets even worse on your end. Since nearly every abuse complaint contains a URL, you now have to either scan the fax in (and hope the OCR works correctly) or hand-type the URL.

The entire fax-to-report-abuse process is the model of inefficiency and wastes both paper and time. Also, once again, if you make things too hard on people, they will be tempted to go over your head and complain to your host, something that can create major headaches for you.

A Better Solution: Email. Pure and simple. Though offering a fax is a fine back up for law firms and others that prefer it, offering it exclusively just makes things harder on everyone. Use your fax and email together, which is trivial to do, and let those that need to contact you decide which they want. Google, this one is for you

2. Irrelevant Auto-Responders

The Big Idea: Most abuse complaints fall into one of a few categories so, by setting up a series of of autoresponders, you can handle many cases without the need for a human to even get involved. This can save admins a great deal of time and actually help many problems get resolved faster.

The Problem: Autoresponders are probably the most commonly misused tool in abuse handling. Though autoresponders have a role, setting up a good system that actually helps users takes a great deal of time and energy. It is an investment that only pays off in the very long run or on very large sites.

Several sites have sent me autoresponders that not only don’t apply but actually offend me. Several social networking sites, for example, tell me to simply ” block” of the offending person even though I am not a member and my issue could not be resolved by blocking even if I were.

For the most part, autoresponders are used to just repeat simple warnings and instructions clearly posted on the site, at this point, though, it is too late as the complaint has, theoretically, been filed.

A Better Solution: Using an autoresponder to let me know has been received is not necessary, but not annoying either. Sometimes, it is even comforting. Beyond that, the only notices one should get is when action has been taken.

Most people don’t mind stock letters in these situations, but letting machines handle abuse complaints is foolish at best unless you have a very robust abuse handling process. In general, I want sites to let me know when they get the complaint and let me know when it is handled, beyond that, I don’t need any correspondence.

Stupid autoresponders cause confusion and might actually cause people like me to take steps that waste both of our time. Once an email has been sent is not the time to educate users about the block function, though a good stock letter can help anyone who might be ignorant of that feature and sent an email anyway.

1. Silence

The Big Idea: Abuse is hard, if we simply don’t provide any contact information, ignore the complaints that we get or simply don’t provide any valid contact information, we can avoid having to deal with it.

The Problem: At best, you run the risk of your site becoming a cesspool of spam, copyright infringement, pornography, etc. At worst you, run the risk of finding yourself in court as you sacrifice your safe harbor protections and could even face criminal issues depending on what your users are posting and how complacent you are in it.

Ignoring abuse does not make it go away, but it could make you legally responsible for it.

A Better Solution: Creating a real system for dealing with abuse. Though the systems above are imperfect in many ways, they are better than ignoring the problem. It is better to make mistakes in handling abuse than ignore it altogether, the latter is just going to bring a completely different caliber of problems to your doorstep.

Conclusions

Abuse is tough and, as part of my consulting services I offer to work with hosts in these areas, building better systems and resolving disputes.

I understand well that hosts don’t want to deal with these issues or want to handle them as cheaply as possible. Not only does abuse not generate any revenue, it costs customers and puts a strain on resources, which are now more precious than ever. Abuse handling, however, is not just a necessary evil, but a long-term investment.

Sites that handle such issues poorly become known as no-man lands and those scare away image-conscious advertisers and professional users alike. It may be easy to draw users when you are known as a place with no rules, but it is hard to profit from them.

The companies that do the best financially are the ones that don’t create walled gardens, but create gardens with the fewest weeds. If you let the parasites roam free, they eventually do take over and kill off anything special that might have bloomed.

These are not places most people want to spend a lot of time and, thus, will not be good for people that actually want to use your service. In the end, it is up to the host what type of site they want to build. The law and common decency can only do so much.

People will breed what they want on the Web, the consequences will come later. It is just a matter of whether or not people can actually see the completely predictable outcome before they embark. Sadly, it seems that many can’t.

Question

Have you had a horrible experience reporting abuse to a site/host? Let me know in the comments!

The Performancing Legal Issues Forum is a place to ask questions about a variety of legal issues that impact bloggers including copyright, trademark, privacy, libel, etc.

However, the most commonly used service is the research and strategy-development on individual cases of content theft. On the forum, that is a completely free service, no matter how long it takes to research the case.

As usual, nothing on the forum should be taken as legal advice but it is a great place to ask questions, get quick answers and look through previous answers as well.

I moderate the forums and try to answer all questions within 24 hours and there are at least a couple of attorneys who also stop by and offer their insight from time to time.

It is a great resource that I am proud to be a part of that has not seen a lot of use in recent weeks. So I wanted to remind everyone of its availability.

I’ll see you at the forums if there is anything that I can do.

It was a flurry of legal activity this week with new laws being passed, the RIAA makes more noise about filtering and a Scrabulous parody video manages to be both sexy and comedy gold at the same time.

So, as always I sat down with Chris Matthieu from Numly to discuss those stories and more with our usual mix of news, views and abuse.

This week’s stories include.

• Congress Passes Copyright Bill Targeted at Colleges
• RIAA “Muses” about Content Filtering
• Comcast Brags about Bittorrent Filtering
• China’s Baidu in Another Lawsuilt
• Parody Music Video Aims to Save Scrabulous
• And Many more…

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Note: There seem to be some audio issue with this week’s recording as Chris’ mic seemed to be producing some static. My apologies for that issue and we will try and correct them for next week’s show.

Show Notes

[audio:http://media.libsyn.com/media/plagiarismtoday/copyright20eps45.mp3]

Worst hit of all are the bloggers, who often endure the worst kinds of infringement only to discover that they have no ability to enforce their rights.

At fault is a legal system that is still in place nearly 20 years after it was supposed to be eradicated. It ensures that copyright in the United States favors big businesses, such as the publishing houses, record labels and movie studios, while limiting the rights of the everyday citizen.

Worst of all, even as the government talks about strengthening other areas of copyright law to the point of insanity, there is no mention of righting this fundamental imbalance.

It is time to close the United States Copyright Office, or at least a large portion of it, end the registration requirement and, finally, bring small copyright holders to table.

No other Western nation has this requirement and it is time for the U.S. to catch up with the rest of the world.

A Bit of History

When the United States signed on to the Berne Convention in 1989, well after nearly every other country had signed on, all formalities required to obtain a copyright were supposed to be eliminated. This included, in theory, copyright registration.

The United States, however, found a way around that. According to U.S. law, all of the rights a copyright holder obtains are bestowed upon them once the work is “fixated into a tangible medium of expression” but one has to register their copyright and pay the $45 fee before they can sue for any infringement in a Federal court.

This is akin to saying that you own a vehicle once you have paid for it, however, you have to register it with the motor vehicle office and pay a fee before the police will look for it if it is stolen. The ownership is effectively meaningless.

Worse still, in the U.S., you can only sue for statutory damages for infringement that occurs after the work is registered. Since actual damages in many infringements is effectively zero (and are difficult to prove when they take place), suing for infringements that take place before registration is almost impossible.

This system does not hurt traditional media. The cost of registering works is not prohibitive to them and, generally, they can register works before they are distributed, such as submitting a CD or book before publication. Bloggers, on the other hand, can not afford the $45 per work fee and can not wait to register a work before publishing it. For us, creation and distribution are the same process.

At best, bloggers can register their site as a collection, for one fee, months after the first works were published. This is far too late to deal with most infringement as the life cycle of a blog entry is often measured in hours, not weeks.

By the time the registration is complete, the opportunity to enforce copyright has long since passed.

An Unfair System

In addition to favoring large copyright holders, the system is unfair for a spate of of other reasons as well.

• Favors Foreign Works: Due to the Berne Convention, courts have to treat foreign works as if they were registered whether or not they were. Though many foreign copyright holders still register for the prima facie evidence of ownership, they can sue for statutory damages regardless of registration status. In short, the U.S. treats its own copyright holders worse than ones in other countries.
• Favors Wealthy Copyright Holders: A $45 registration fee might not seem like a great deal, but when you register many works, the cost can add up quickly. Simply put, wealthy copyright holders are better able to register and protect their works than poorer ones. The removal of formalities was designed to remove that kind of bias.
• Harms those Ignorant of the Law: Copyright holders unaware that they need to register in order to sue for infringement or collect statutory damages might not register and, out of ignorance, harm their rights. Since copyright law is such a difficult and misunderstood area of law, such confusion is bound to happen among artists, who tend to be laypeople.
• Harms Immediate Media: Any media that does not have a delay between completion and distribution can be harmed by this. Since the copyright holder can not wait for the work to arrive at the USCO, which is when the registration becomes effective, some infringement will almost always happen before the work is registered. This hurts journalists, both traditional and Web-based, as well as many types of radio/tv programming.
• No Benefit to Artists: If the intent of copyright is “To promote the progress of science and useful arts” then this system is a total failure. Removing it would not harm any copyright holders, including those that work well under the system now, but would help the vast majority of rights holders.

None of this would be an issue if the copyright office and copyright law would recognize online distribution of a work as publication. Since you have three months after the date of publication to register a work without missing out on any damages, it would, theoretically, be possible for a blogger to re-register their site every three months.

However, the copyright office, generally, does not consider posting to the Web as publication (PDF), but rather, as public display. Though the author can choose to present the work as published, there is no guarantee that would hold up in court.

When it is all said and done, there is no legitimate reason for keeping this copyright registration policy in place. There is a good reason that other nations have done away with their registration requirements, at least as a requirement for copyright enforcement and it becomes clear why when one looks at the problems associated with such a system.

Worse still, as the Internet not only increases the distribution of works, but the speed with which they are published, it only pushes the Copyright Office further and further in to obseletion, making it nothing more than a relic and an antiquated system.

Some Good News

Fortunately, when it comes to copyright registration and bloggers, there is some good news.

First, copyright registration is not required to file a DMCA notice or send a cease and desist letter.

However, if either of those notices are ignored, then enforcement through a court of law would be almost impossible. One could register then and hope that the work arrives at the USCO before the infringing copy is removed, but even as the work was traveling to the Copyright Office, unclaimable damages would be accruing.

Second, there is one kind of copyright infringement that does not require a registration to sue for, the removal or falsifying of copyright management information (CMI). This is basically the removal of attribution, copyright information or licensing data from a copyright protected work, a critical element of plagiarism but not all copyright infringement.

Though you would still have to register your work before you sued, you could still claim damages for infringements that took place before the registration was filed. Those damages, according to the law, are between $2,500 and $25,000 per work. This amount could easily be worth suing over if more than a few works were taken.

But even with these tools available to non-registered rightsholders, it is clear that severe limitations are still imposed on them, limitations that do not appear ready to be lifted any time soon.

Conclusions

It is the height of insanity that the United States, on one hand, keeps increasing penalties for copyright infringement and empowering copyright holders more than ever while simultaneously keeping the majority of rightsholders from enjoying those privileges.

It is a showcase of favoritism and raises severe questions about the impartiality of our copyright policy.

Of course, if all copyright holders were brought to the table and able to eat the same food as the RIAA, the insanity of much of the U.S. copyright code might be exposed. Drastic steps might seem prudent when trying to defend a multi-billion dollar industry, but what happens when bloggers get the same rights and start to use them?

Strangely, empowering all rightsholders might help users and the public at large by forcing the government to look at its other policies and make rational changes. The abuse of the wealthy can be justified on paper but the abuse of many can not. In short, the current system encourages the RIAA and the MPAA abuses we’ve witnessed by ensuring only a wealthy handful have the ability to take advantage of the law, letting those in power justify the system that is in place.

However, all copyright holders are, supposedly, equal and should enjoy the same protections for their work, regardless of their wealth or background.

The published poet did not work more than the unpublished one. The musician with the record contract put as much love into his music as the one still in his garage.

Copyright law should reflect that, even if it means making other changes to the law. It is that simple.

Though the attention to this issue is welcome, many of these guides contain false, misleading or incomplete information. Though they are produced by smart, well-intentioned people, their errors can lessen the effectiveness of their strategies and, in some cases, expose the person following it to legal danger.

For example, one guide I encountered a year ago encouraged people to take their grievances public immediately and post them to a special forum. Not only is this time-consuming and unlikely to succeed in many cases, but it opens up the person doing the posting to a libel suit if their information is wrong.

However, such dangerous mistakes are relatively rare and are usually limited to small and obscure sites. Instead, the most common mistake made when crafting an anti-plagiarism strategy is something much more simple: Forgetting about the host.

As strange as it may sound, the most common omission in many of thse guides is the most effective tactic of all, getting the site shut down.

Skipping a Step

It seems that most guides on plagiarism fighting are pretty good at telling you ways to detect the infringement and to contact the plagiarist. Many provide stock cease and desist letters to send to the infringing Webmaster and advice on how to deal with different kinds of plagiarists.

However, should that step fail, a majority of these guides will then offer advice on how to get the content removed from the search engines or get the site’s advertising cut.

Though targeting advertisers can be a very effective way of dealing with profit-motivated plagiarism, such as with scrapers, neither that nor targeting search engines is as useful for deflecting the potential problems that come with being plagiarized as getting the site or the content removed.

Interestingly enough, many guides will include DMCA contact information and stock letters for contacting the search engine, but will completely omit any information about sending such a letter to the host.

Whenever I see such an omission, I comment on it and, in most cases, it is corrected fairly quickly. I have only seen a few such guides remain for a long period of time without this critical information.

Still, the frequency of this mistake has made me wonder why so many people overlook it. However, it didn’t take me long to think of a few potential answers as to why.

The Hardest Button to Button

The problem with filing a DMCA notice with a host is that it can be a very daunting challenge. Even if you have the template handy, you have to first know how to determine who the host is, then, if they are in the U.S., locate their DMCA contact information and then contact via the means they specify.

That, in turn, requires a level of research many people are not comfortable with. If you are unfamiliar with networking tools, ill at ease reading through terms of use or only have limited knowledge about how the Internet works, sending a DMCA notice to a host can be a very daunting challenge.

Sending notices to Google and the other search engines, by comparison, is very easy. If you have the template in hand, there is only one page you need to know for each search engine. It is pretty trivial, from there, to send out the notices without doing any research and not wading into any uncomfortable waters.

However, this is dangerous for several reasons:

1. Doesn’t remove the content: Though it won’t turn up in the search engines you send the notice to, the plagiarized copies are still available on the Web and other search engines as well as human visitors can still access it.
2. Turns the search engines into the copyright police: This concentrates all of the responsibility for policing copyright into three or four search engines. This was not the goal of the DMCA and it gives those companies too much power and responsibility in this matter. A change in policy of just one search engine could, potentially, have drastic implications on the Web.
3. Can harm innocent bystanders: Search engine DMCA bans work differently from site to site but, in some cases, it is possible that more than the pages than intended can be banned, including pages written by other people.

While there is definitely a place and a time for using search engine DMCA bans, immediately following a cease and desist is not it. Typically, I only turn to search engine bans when everything else has failed and I am prepared to give up.

In my mind, it is a way to do something when it seems nothing can be done at all.

Correcting the Problem

Since fewer people are comfortable with sending DMCA notices to host, fewer people use them. Since fewer people use them, fewer people write about them and that means that fewer people know about their existence.

This in a brutal cycle where more and more people get incomplete information. Not only does this lead people to use less effective tactics, but leads to mistakes down the road when they attempt to contact the host, often resulting in false or incomplete notices.

The key, then, becomes to make sure that more people are aware this method of dealing with plagiarism and push them to take advantage of it. It also means working to ensure that they have the tools available to file a proper notice and send it to the correct person.

If we can do that, along with providing basic copyright information, we can go a long way to reducing the copyright drama that exists on the Web.

Conclusions

The vast majority of people who post anti-plagiarism guides are good, well-intentioned people that are trying to help others. Unfortunately, they are not always right and sometimes that advice can lead people astray.

It is important, when researching an anti-plagiarism strategy, not to just read one guide, but two or three. Don’t take any one person’s word, including mine, as gospel. Seek out other opinions, views and strategies. There is a constant dialog going on and, though I try to report on it, the Web is a big place and I don’t see absolutely everything.

Build your own strategy based upon your needs, time constraints and skills. When appropriate, experiment. If you learn something that works or see something new, share it with others and drop me a note as well.

I am always on the lookout for new techniques and strategies in prevention, detection and cessation that can help myself and other Webmasters. Input and feedback is always appreciated.

Note: I have not linked any of the guides that inspired me to create this story. My goal with this is not to call anyone out or embarrass anyone. These are complicated issues and mistakes are understandable. I want to encourage others to create more guides, not shame people that make simple mistakes. Furthermore, nearly all of the guides that I’ve seen with this error have since been fixed.

The judge’s order officially struck the pages from the record and removed the printouts from evidence.

This is, potentially, a major blow to n0n-repudiation services on the Web such as Numly, Registered Commons and Duly Noted. as this means that their primary function, providing proof of authorship, may be impractical for the court cases they are likely to be involved in.

What Happened

The case in question, Novak v. Tucows, revolves not around copyright issues, but on domain ownership. Novak was, and now again is, the owner of the domain “petswarehouse.com”. According to the Judge’s opinion (PDF), a legal dispute between Novak and a third party caused the domain to be transferred away from Novak’s control for a period of over a year between 2003 and 2004.

Novak then sued Tucows, his domain registrar, for allowing the transfer to take place saying that the lapse in control ruined his business and violated his trademark.

s part of the case, Novak, who is representing himself, submitted several print outs of pages from The Internet Archive in an attempt to show what various sites involved looked like on the days in question. Tucows, however, moved to strike that evidence and the judge granted that request saying that the printouts were inadmissible hearsay without “any authentication of plaintiff’s Internet printouts.”

Such authentication could take the form of either a sworn statement by anyone directly connected with the print outs, such as a staff member of the Internet Archive, or testimony from someone in such a position.

Though this is certainly a major development, it is very standard for evidence to have such a requirement in order to be admissible. It is not commentary on the Internet Archive, though some see it as such.

What it Means

First and foremost, this means that there must be a change in the way we, as Webmasters, look at non-repudiation services. Though these services can provide a great deal of value in the event of a copyright dispute, it is no longer a simple matter of taking printouts to the courtroom.

Getting such print outs admitted as evidence in an actual court case would involve either:

1. Getting a sworn statement from an employee of one of the sites hosting the page or
2. Having such a person testify in court about it.

Both of these processes can be expensive, especially when one looks at travel costs, and would be out of reach for most small claims copyright cases.

Even the certificates that many of the services, such as Registered Commons and Duly Noted, generate would not be considered primia facie evidence of authorship (meaning “on its face”) and would be equally inadmissible without some kind of corroborating testimony.

This isn’t the end of such services, they still have plenty of usefulness, but it will change the manner in which they are used.

How to Respond

Realistically, no one should have ever expected courts to accept the word of a non-repudiation service without at least some form of corroboration. Courts can not distinguish between good and bad services and would need at least some testimony in order to accept the output from such a service into evidence.

However, now that it is coming out more strongly in case law, it is time to consider taking steps to mitigate against this.

1. Register with the U.S. Copyright Office: A certificate from the U.S. Copyright Office (USCO)is considered prima facie evidence of authorship. There is no need to subpoena anyone from the Copyright Office, no need get a deposition. The official certificate with the government seal is considered more than enough.
2. Establish Relationships with Non-Repudiation Services: Using the Internet Archive is dangerous by itself because it can be very difficult to get someone from the organization to testify. If you know who is providing your service and how to get in contact with them, it would be much easier to get them to testify on your behalf.
3. Develop A Backup: Non-repudiation services can be useful, but it is important to develop a back up plan to prove authorship. A local timestamp service may not carry much weight, but at least it could be admitted as evidence.

The bottom line is that, unless a case is worth enough money to warrant deposing a third party, likely in another part of the country, electronic non-repudiation services may not be of much value. This is unfortunate, but but not entirely unexpected.

Conclusions

This ruling, as logical as it may be, creates tremendous headaches for copyright holders. Until the USCO finalizes its long-promised Internet registration system, there is no immediate way to time stamp and verify authorship of a work in a way that will be accepted in a courtroom.

Though, clearly, electronic non-repudiation can have a great benefit in cases where the money involved is high, those cases would likely also require a USCO registration. Unless the USCO registration came after the infringing material first went up, it would seem that the electronic service would be superfluous.

However, these electronic services are still very useful in the court of public opinion. Though it is unlikely that a court case would hinge upon the evidence that they provide, they, especially the Internet Archive, have been used to separate the plagiarists from the original authors thus acting more as a protector of reputation than of ones full legal rights.

Still, it would be nice to see electronic non-repudiation services offer an assurance that they will be available to stand by their product under oath. Even though the cost factor might continue to be an issue, it would be assuring to know that, should a big enough dispute arise, the service will be there in your corner.

It might not be much, but it would be something.

Hat Tips:

Technology Law Update
Bureau of National Affairs (pay)