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.

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.

This is great news to hosts who, before 1998, were operating in a fog of legal uncertainty. Before the law was passed, there was a large debate about whether or not hosts could be sued for infringement, even if they were unaware of it taking place.

But while the legal clarity is great news for hosts, it is also great news for everyone else. Because, as the Web has become more interactive, nearly everyone with a Web site or blog is now a host as well.

The time has come for everyday citizens, not just traditional hosting companies, to look at designating a DMCA agent to better protect themselves against the actions of their readers and the copyright holders they might upset.

Why Designate An Agent

When you accept user generated content, you don’t know what you’re getting. You have no idea if that poem or photograph is really the property of the user that posted it or merely ripped off from another site. Since you don’t know what is potentially infringing and what isn’t, that means you can’t do anything to stop the infringement in advance other than set firm policies against posting copyrighted material.

This means, over time and with enough material, that it becomes almost certain that someone, at some point, has posted an infringing work to your site. However, without DMCA safe harbor protection, you could be held partially liable for that infringement. The risk goes up dramatically based upon the amount of work posted, the popularity of the site and the profit gained from it.

Though very few legal disputes from this type of activity rarely spread to the host, the cost and hassle of dealing with a copyright infringement suit makes even a slight risk unacceptable, especially for independent Webmasters on tight budgets.

Who Should Consider It

If you host content for your users, it is worth at least thinking about registering a DMCA agent for your site.

However, that content can include just about anything. If you accept comments on your site, allow others to post without any editorial control or run a forum that users post their own works, there’s a good chance that you could qualify for DMCA safe harbor protection.

Of course, the risk varies wildly from site to site. If you run a blog and receive mostly very short comments (IE: “Great job!”) the risk is a lot lower than for a forum that encourages users to post their poetry, short stories, essays or photographs. It’s important to be realistic about your risk before deciding to go ahead with registering a DMCA agent.

One important note about the DMCA is that, in order to qualify for safe harbor, the following must be true: “If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.”

This is something of a legal gray area that has not been fully explored, though likely will be a central argument of the Viacom/Youtube lawsuit.

The bottom line to it is that, depending on how you make money from your site and the role the user generated content plays in that, you may not qualify for DMCA safe harbor, even if you designate a DMCA agent. If you think this might apply to you, you probably should take a pass on it, at least until the rules are clarified.

Finally, it is important to remember that the DMCA is a United States law only applies to hosts residing within its borders. Even if you host your site with an American company, you, as a host independent from the company that runs your server, need to be an American citizen before you consider filing a DMCA agent.

Reasons Not to Register

Even if you do easily qualify for safe harbor protection, there are several reasons to consider not registering a DMCA agent:

1. Cost: If the risk is very low and the budget is tight, the $80 fee to file might seem a little steep.
2. Privacy Issues: Filing a DMCA agent requires giving up a great deal of information including email, address and phone number. Though this is only made available on the U.S. Copyright Office (USCO) Web Site, if you are designating yourself as the agent, which would be the most common person one designates in these situations, it is a lot of personal information to give away on the Web and, unlike whois information, it can not be made private.
3. Maintenance: It’s not enough to just send the information to the USCO and be done, it has to be maintained. As you move, change numbers or switch email addresses, you need to update your information at the USCO.

It’s very important to balance the insurance that such a registration provides with the risks, expenses and hassles that may come with it. Though there are ways to mitigate against all of these factors, they are important issues to consider when deciding whether or not to go ahead and designate your own DMCA Agent.

How to Designate An Agent

Once you’ve made the decision to designate your own DMCA agent, the process of doing so is very simple.

1. Print out the “Interim Designation of Agent to Receive Notification of Claimed Infringement” form (PDF).
2. Fill it out and mail it to the USCO with the $80 filing fee.
3. Later, sometimes months later even, the USCO will process the application, scan it as an image-only PDF and then upload it to their directory of agents.
4. The process is done.

Generally, the hardest part about designating an agent is determining who to designate and what information to use. To that end, there are several things you need to think about to make the designation more useful and protect against problems down the road.

• If Possible, Don’t Use Yourself: If you have a regular attorney, use him or her as your designated agent. They might charge a small fee, but it protects your privacy and gives you a buffer against angry copyright holders. Alternatively, consider using a copyright consultant, such as myself, as they are more familiar with the law and can serve many of the same functions, only turning cases with complicated legal issues over to attorneys.
• User Permanent Addresses: To avoid having to amend your registration, and thus pay the $80 filing fee a second time, use permanent addresses and phone numbers. Though the USCO will not accept P.O. Boxes (save where it is the only available address), some P.O. services will let you use suite numbers. Make sure that it’s a box that is checked regularly as a failure to respond negates the benefit of registering a DMCA agent.
• Upse Portable Phone Numbers: Considering using a cell phone or even a Skype In number as they are more portable and are changed less frequently. Once again, make sure that the number is one that will actually be answered when called. Finally, for the fax number, considering using a Fax-to-Email service to ensure that the number stays the same and can be checked from anywhere in the world.
• Include All Sites: If you run multiple sites, include them all on one registration to save money. There is no reason to file multiple registrations if you are the operator of the site and are using the same agent for all of them.

If you do all of those things, you can greatly reduce the hassles and expenses that come with registering a DMCA agent while still enjoying all of the benefits.

That alone should make it worth taking the few extra moment to ensure that it is done correctly, the first time.

Conclusions

The big question remains, who should file register a DMCA agent for their site? There is no cut and dry answer. The larger your site is and the more user-generated content you host, the more seriously you should be thinking about going through with it.

Not only does it guard against potential lawsuits by providing you safe harbor from liability, but it also provides protection against your host using the nuclear option and temporarily shutting down your site due to infringement by one of your users.

Still, most people will attempt to contact the owner of a site before running to their host. More important than having a designated DMCA agent is being available, at least informally, to answer any complaints of copyright abuse. Having a clear abuse policy and an easy-to-find method of contact will do as much, if not more, to mitigate against shut downs and lawsuits.

Despite that, as copyright issues become more common on the Web, sites that deal with large amounts of user-generated content, including popular blogs that get a large number of comments and active forums, should probably take a lengthy look at going through the motions to designate a DMCA agent.

A little time and a little money can guard against much larger headaches and expenses down the road. Many, including some that never would have considered it before, might find the process more than worthwhile.

As for me, I most likely will not be designating an agent at this time for Plagiarism Today. The nature and quantity of the comments on this site simply does not warrant it right now. I am, however, seriously considering this for other sites that I run.

I strongly encourage others in similar positions to do the same.