Hosts: The Real DMCA Problem

Since Michael Crook brought down the wrath of the EFF by sending out invalid DMCA notices, the notice and takedown provision of the law has drawn a great deal of fire.

Some have accused it of being a matter of shooting first and asking questions later while others have hoped that it will simply go away. Though some legal scholars have chimed in to calm the furor, it’s done little to abate the very understandable outrage.

Still, the anti-DMCA crowd has a point. There are problems with the law and it is prone to abuse. However, the problem isn’t so much with the law itself, but with the hosts that apply it.

Simply put, the DMCA has a large amount of protection built into it to prevent abuses, but those protections rely upon Web hosts and users to be vigilant and be invested in the freedom of speech.

That is something clearly lacking.

Safeguards

The DMCA is not a perfect law, but it does incorporate many different safeguards to prevent abuse. Those safeguards include:

  1. DMCA Notice Requirements: To file a DMCA notice, you must be the copyright holder of the work involved or a designated agent thereof, you must identify the infringed material and you must sign a statement of accuracy under the penalty of perjury.
  2. Counter Notices: All material removed by the DMCA is possibly subject to a counter-notice that requires the host to replace the content within fourteen days, unless a lawsuit is filed. These notices are rare in cases where the takedown was legitimate but are very useful in questionable cases.
  3. Host Flexibility: The DMCA requires hosts to “expeditiously” remove infringing material. However, there is nothing that says the host can not contact the account holder first and let them remove the content. Many hosts do exactly that, allowing the account holder 24-72 hours to resolve the matter themselves. Hosts also do not have to shut down or suspend accounts, just remove the infringing material.
  4. Stiff Penalties for False Notices: As the Crook case is proving, there are many potential lawsuits that can come out of knowingly filing a false DMCA notice.

When you look at the potential ways a false notice can backfire, it becomes clear that doing so is a very risky proposition. Furthermore, as bad as the U.S. system may be, it is still better than the EU system, which offers none of the above items and is even more ripe for abuse.

Though the DMCA was intended to be a “shoot first” law, it does not have to work that way. Hosts can easily remain in compliance with the law and protect free speech, they just have to be willing to try.

A Reasonable Response

Rather than rushing each and every DMCA notice to the abuse team, it would behoove hosts to take a slightly more reasonable approach.

  1. Read the Notice: Make sure that it is complete and look at the nature of the alleged infringement. If the notice is incomplete, set it aside and contact the complaining party, if it is complete and the infringement is both clear cut and severe, act on it immediately.
  2. Notify the User: If the infringement is questionable or minor, let the user know what is going on and give them the chance to rectify it. Allow up to 72 hours if possible. This gives them the chance to either find new hosting temporarily or selectively remove the works.
  3. Inform the User: Let the user know that they have the option of filing a counter notice and what that means. If the DMCA notice appears to be flagrantly invalid, it might even be a good idea to offer some help in filing it.
  4. Work With Both Parties: If there is an obvious disagreement, try to work with both parties. It may be a misunderstanding that you can hammer out. Even though you’ll have to remove the work yourself it can’t be resolved. Explaining the situation and trying to induce cooperation can work wonders.
  5. Follow the Law: If all else fails, follow the letter of the law. Remove the work yourself, suspend the account, do what you have to. However, do it with an eye toward protecting free speech. This will not only help you keep a customer, but also protect free speech and help out ISPs and copyright holders by reducing the backlash against the DMCA.

All of this seems logical. A host should evaluate a DMCA notice on its merits, quickly shut down severe and clear-cut infringements, which are also violations of most Web hosts terms of service, and try peacefully resolve DMCA notices that raise fair use, ownership or copyrightability questions.

No host, under any circumstance, should ever accept an incomplete DMCA notice.

Yet, as a recent study and evidence presented by the EFF (PDF) in the Crook case shows, that is far from how it happens.

So Why Not?

One has to remember that Web hosts were one of the groups that pushed for the notice and takedown provisions of the DMCA. The law is there to protect them from being sued for copyright infringement perpetrated by their users.

Though the law protects hosts from users, hosts refuse to protect users from the law.

The reasons are pretty straightforward:

  1. Lack of Understanding: Hosts are people too and there is a lot of confusion about copyright law, especially on the Web. Though larger hosts outsource their DMCA functions to lawyers (see point three), smaller ones can not and, rather than try to interpret the nuances of copyright law, simply follow the strictest interpretation possible.
  2. Money Issues: Hosting is a true economy of scale. Most Web hosts have so many users that pay so little per month, they can not afford to spend a great deal of time working with them. This includes support, billing and other issues. By in large, it is much cheaper to lose a single customer than to spend a few hours trying to resolve a DMCA issue.
  3. Legal Vulnerability: Though the actual risk of a host being sued for infringement, especially over a minor incident, is minuscule. Hosts do not want to take that risk as one lawsuit can mean major losses. Most companies tend to be very risk-adverse regarding legal matters and hosts are no different.

The problem, simply put, is that most hosts look at their customers, individually, as expendable. One customer out of 10,000 will not drastically change anything, especially if the customer is not paying for the service. It takes a massive number of customers to speak up before any sizeable host will ever take notice.

In short, the host gains almost nothing by fighting for their customers on DMCA matters, but loses a great deal and risks an incredible amount.

To a host interested solely in the bottom line, it just isn’t worth it.

The Solution

The only users that have to worry about being suspended due to a false DMCA notice are small and medium sized sites hosted with large companies. Very large sites, which also pay large amounts of money, generally get special treatment when it comes to DMCA matters.

If you feel that you are at risk for a false DMCA notice, which are still very rare, the best thing you can do is switch hosts. Getting away from the large hosting corporations and using a smaller, more personal, one provides some of the best protection. If you have a friend that does hosting, contact them.

Another option, though impractical for most, is to host yourself using your own server and a leased connection. As the owner of the server, you would be the one to receive the notice.

There are some large hosts that do work well with customers. Google, who owns Blogger, tries to protect users from false DMCA notices (though their DMCA procedures are questionable for other reasons), Myspace surgically removes infringing material rather than suspend accounts in most cases and Xanga, now that they’ve resolved their DMCA issues, contact users first and give them 72 hours to resolve the matter before suspending accounts.

However, these cases are exceptions, not rules.

By in large, the more valuable you are to your host and the stronger your relationship with them is, the better off you will be.

Conclusions

The DMCA can protect both copyright and free speech, all that is required is that hosts be willing to stand up for their users. The law doesn’t ban common sense and hosts have a lot more wiggle room than they imply.

By in large hosts show no interest in protecting their users due to a combination of greed and fear. Customers start speaking in a massive way with their wallets, that is unlikely to change.

The point to all of this is not to have hosts ignore copyright infringement or turn a blind eye to DMCA notices as that would be illegal and immoral (though many hosts still do), but rather, to bring some sanity and balance to this.

Without free speech, copyright has no purpose. For the sake of artists’, we must protect both.

 

Tags: Content Theft, Copyright, Copyright Infringement, Copyright Law, DMCA, Plagiarism

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