Pretend, for a moment, that you run a community Web site, perhaps a forum, a group blog or some other social site that readily posts user submissions.
Things seem to be going fine until, one morning, you wake up and find that your site has been replaced with a generic “account suspended” page. Frantic, you call your host try to find out what is going on. They inform you that they received a DMCA notice against your domain and that, in order to comply, they had to take the entire site down.
After looking at a copy of the notice, you realize that one of your users did indeed post infringing material. You work with the host to get your site back online but the damage is done. Traffic has taken a noticeable hit, along with possibly your income, the users are torn between being upset and concerned and the ripples from the extended downtime will echo for quite awhile.
Still, the question lingers “Why did it have to come to this?”
The Nuclear Option
Many major “dot com” Web hosts handle DMCA notices through a method I’ve previously referred to as the Nuclear Option. Even if the infringement is just on one or two pages within a site, they will pull the entire domain offline until the issue is resolved.
As one commenter to the original story pointed out, this is usually the only practical solution such hosts have. They usually lack the control to surgically remove infringing pages. However, this is cold comfort to sites, especially large community sites, that are taken down due to a few infringing images, sound files or written works.
It’s a sad sight to see thousands of good users and countless original works be removed in order to shut down one bad user that posted a few infringing works. However, it does happen regularly. Even I have, unwittingly, been the instigator in a few “nukes”.
Administrators need to take note of this as it is a common pitfall of running a community site but one that can easily be avoided.
Why Nukes Happen
Nukes happen because hosts, under the DMCA (PDF), are required to act “expeditiously” after being properly notified of copyright infringement. DMCA notices happen, generally, because a Webmaster or other copyright holder becomes frustrated with trying to get a matter resolved and winds up having to use the DMCA to get the works removed.
Very few people, especially when dealing with community sites, use the DMCA as their first stop. Most turn to the administrators or moderators for help first. It is only when those requests are ignored or unanswered that the copyright holder finds himself looking for alternative solutions, often times involving the DMCA.
The simple secret to preventing copyright holders from filing DMCA notices is to simply never let it get to that level. The easiest way to do that is to resolve copyright issues quickly and effectively, before they have the chance to move up the ladder and cause more problems.
How to Avoid Escalation
Odds are, in the scenario at the beginning of the article, something went wrong well before the site came down. It could be that a moderator failed to act on a copyright issue, that the notice was sent to an outdated email address, that it was chewed up in spam filters or just outright ignored. But no matter the reasons, almost certainly, somewhere in the site’s records is some kind of warning of what might be to come, a warning that just wasn’t acted on in time.
However, guarding against these issues is simple, free and takes almost no time. One just has to be willing to think about them in advance and make minor adjustments beforehand to prevent them from becoming a problem later. Those adjustments include:
- Having a Clear Copyright Policy: It can be worked in to your traditional terms and conditions, but there needs to be a clear statement the copyright infringement is not tolerated and it should also offer clear steps for users to report such infringements, preferably without becoming a member.
- Instruct & Empower Moderators: If you use moderators to help patrol you community, instruct them on how to handle issues of copyright infringement and give them the power to do so on all accounts. Some services have a “paid loophole” that lets paid members avoid action from moderators, instead requiring the Webmaster himself to step in.
- Have a Clear Means of Contact: Give visitors an obvious and easy means to get in touch with you or other abuse decision-makers. Be it an email address, a form or private message, there needs to be an easy way to report abuses of all kinds, not just copyright infringement.
- Check Your Inbox: Make sure that the abuse inbox is checked regularly. Complaints that sit longer than 24 hours are likely to be escalated.
- Remove Infringing Works: Even if you have doubts regarding the validity of the claim, remove the infringing works and wait for a counter-notice from the user. It might be a difficult bullet to bite, but it causes far fewer issues than waiting for the whole site to be taken down.
- Consider Requiring Full DMCA Notices: Before acting on copyright complaints, request that the complainant file a full DMCA notice and offer links to help them do so if they need assistance. Requiring a full notice will likely provide you with greater legal protection (from both sides of the dispute) and may reduce the number of frivolous cases.
- Update Whois Information: Finally, make sure that your contact information associated with your domain is kept up to date and that the account associated with it is checked regularly. Many copyright holders, for better or worse, perform a whois search on a domain before looking at any on-site abuse information. A bounced email or lack of response could be seen as cause for escalation.
These are simple steps that any administrator or Webmaster can do. Most of them have been covered before in greater detail here. However, they are no longer just steps to take to be a good neighbor, but also steps essential to the survival of community sites, especially smaller ones that rely on large hosting companies.
There are, of course, other ways to avoid being nuked off the face of the earth by a DMCA notice. However, they are ways that involve significantly more work with much less reward.
- Own the Server and Host Yourself: If you own the server and provide your own hosting, you can’t be victimized by a DMCA notice, you would be the host and, thus, the person that would receive the notice. However, this comes with all of the costs, complexities and problems that are involved with running your own server. It also comes with all of the responsibilities as well, if you are a U.S. resident and fail to respond to a DMCA notice, you may be held liable.
- Offshore Your Hosting: You can always try to move your hosting to a country that is not under the DMCA or a DMCA-like law. However, the list is very short. With most of the Western world, including the EU, operating under some mirror of the DMCA, finding a host in an English-speaking country with a good backbone connection and no DMCA-equivalent law is almost impossible. Doing this would, most likely, greatly increase your cost and cause significant slowdowns for your site, especially if the majority of your users are American. Moat likely, this is a very bad idea.
- Find a More Cooperative Host: The best, easiest and most practical solution to the situation is to just find a more cooperative U.S.-based host. Though the DMCA does require them to remove infringing material, many will first try to work with Webmasters before shutting down their sites. When looking for a host to house a community Web site, take into consideration the fact that some of your members might infringe upon copyright and ask the potential host what their policy is regarding such matters. Most will be happy to discuss it with you. The main thing to ensure is that they will notify you when a complaint is received and give you time to act before taking your site down themselves. Otherwise, you may wish to pass.
Even if you do take one of these steps, it’s a good move to perform the “good neighbor” steps as well. Simply put, you don’t want your site to be mired down in rampant infringement and other abuse issues. No site or forum can be an island unto itself and, thus, building good relations is critical, especially to a growing community.
In the end, if you take the simple good-neighbor steps listed above and find a host that is willing to work with you, not against you, on matters of copyright, you can both avoid being “nuked” by a DMCA notice.
All that is really required is a little bit of forethought and some planning. Actual maintenance of the system is almost effortless and can save many hours of headaches down the road.
It’s not something that’s fun an pleasant, but sadly it is a necessity for a site that wants to develop a strong community base without the pitfalls that can come with it.