The Worst DMCA Response I’ve Seen

joyent-logoUpdate: This story has been updated. See below for the new information. When you send in a DMCA notice, a spam blog complaint or any other kind of abuse report to a Web host, there are a lot of different responses that you might receive.

The vast majority of hosts seem to take these issues seriously and pull down any spammy or infringing content quickly. Others seem to ignore any such requests and others reply with polite, but clearly stock, letters saying that they can’t help.

And then there is Joyent.

Joyent takes things to a new level. Not only does the site not help when someone is misusing your content, but they actually support scrapers and defend them in email responses.

Though many hosts have a policy of inaction against infringement, something that is legally dangerous and ethically dubious, none that I have seen have spent the time and energy Joyent’s representative did to protect them and defend them.

What Happened

Sunday, during some of my testing of FairShare, a system officially launched yesterday, I was notified about a site on a .info domain that had used nearly 100% of my recent article about U.S. Copyright Law.

I looked at the site in question and it appeared to either be a spam blog or a misguided aggregator. It was displaying the full content of dozens of entries on one page, using hotlinked images and the only original content was a pair of “thumbs up” and “thumbs down” buttons with each article that seemed to do nothing.

Though it linked to Plagiarism Today in the headline, it was not linking to or referencing my CC license nor was it referencing the “Share Alike” attribute. When combined with the hotlinked images, I decided to take action, filing a DMCA notice with their host, Joyent.

However, that was no simple process. Never having encountered this host, I searched their site for information about their DMCA agent. However, all I found was a postal address (Note: Link is to a privacy safe harbor, not copyright safe harbor). I checked for a registration with the U.S. Copyright Office, but found nothing. Since all other abuse requests seemed to be routed through their “Support” account, I emailed it and, since it was a weekend and they had limited support hours listed, I did not expect to hear back.

However, I heard back relatively quickly (within an hour), especially amazing considering it was also Super Bowl Sunday. The letter was from Linda Derezinski, who identified herself as the “Director of Support”. Her letter was short and said in part that:

“That is just a RSS feed aggregation site which is properly identifying as such, it is not taking your work and showing it as theirs…. If you do not wish them to show your RSS feed you of course are able to block them from reading it.”

In short, Derezinski was telling me that it was my responsibility as the provider of the RSS to “block” this site from republishing my feed wholesale on their site. Even though that is impossible with FeedBurner and impractical without knowing more about how the site is obtaining the feed.

I’m used to working with and educating hosts about copyright issues, but never have I had such a strong defense for a spam blogger. I responded back with some basic information about the DMCA and links to information on the law, including the Chilling Effects FAQ.

There was a slightly greater delay in this response but, after about an hour, Derezinski wrote back a second time saying the following:

“You have your site identified as creative commons…. They properly identify that the article is from your site. This is not DMCA issue.”

I wrote back a second time, this go around linking to my article about using Creative Commons to Stop Scraping, which includes a discussion with then-VP Mike Linksvayer. I pointed out that the site did not complete the license, neither linking to the license or mentioning the share-alike element.

That was the last I heard of the matter. As of this writing, the article in question is still up on the page in question (though it may cycle off any time now, after being up for a week) and dozens of other articles from different sources are still up, all with full text and hyperlinked images.

To recap what happened. I filed a DMCA notice in what seemed to be a straightforward scraping case, Joyent first defended the scraper saying that it was my responsibility to block them and then, after I showed that was not the case, then tried to tell me there wasn’t a copyright issue since I had a CC license. Once I showed that the site was in violation of my license, there was nothing but silence.

Needless to say this has me frustrated, but not defeated.

Offering a Defense

In the interest of fairness, I’m going to offer some potential defenses here.

  1. Splitting Hairs: I’ll admit openly that the representative was correct that I do have a CC license and the site in question did link back to PT. Though the use was a violation of the license, something I feel very comfortable saying, it is understandable why someone unfamiliar with the details of CC might think that the use was compliant.
  2. Questionable Spam Blog: There is room for debate if this site was a spam blog or an aggregator. Though it clearly violates the best practices for aggregation, it does seem to attempt to add some value. This doesn’t make it less of an infringement, for a host that specializes in applications, it might have been seen as a defense.
  3. Incorrect Person: Though it was the only email address provided, it is clear that Derezinski is neither familiar with nor accustomed to DMCA complaints. I could have sent the complaint via postal mail (I find it stunning that they don’t even offer a fax) but it is likely that the article would have scrolled off or changed URLs in that time.

I have no doubt in my mind that this is not an appropriate way to handle a copyright complaint (as I said in the title, the worst that I had seen) and that this company violates many of the best practices of the DMCA (Not registering their agent with the USCO, not having an email address, not having a direct copyright policy, etc.) but I do want to give them the benefit of the doubt.

I hope that this was a misunderstanding and nothing more.

Conclusions

One of the jobs that I do in my consulting practice is work with hosts on these kinds of issues. I’m often recruited to check for any flaws in their DMCA system and even do test runs of their takedown process. I have a lot of experience in this area.

This is the worst response that I have seen in seven plus years of handling DMCA issues. Though I applaud hosts for looking at DMCA notices and considering copyright issues, this was not a case where the notice was clearly false, the use raised fair use questions or had other common issues that arise with erroneous DMCA notices.

What makes it worse is that the host came down clearly on the side of wholesale RSS scraping and republishing. Meaning that, if you are a spam blogger reading this that engages in RSS scraping, Joyent is likely a natural choice for you as their staff, at least judging from this correspondence, feels that you are doing nothing wrong or illegal.

My hope is that this was just a miscommunication but it has been over 48 hours since my last correspondence with them and no action has been taken on my ticket. If I do not hear more within the next 24 hours, I will look at calling them or filing the notices with Google, provided that the work hasn’t scrolled off or naturally disappeared.

Update

At about 5 PM central time the day this story was posted, I was contacted by Peter Watridge, who said that Derezinski has “escalated” the ticket it to him and he had not been able to get it in a timely matter. He is going to work with the owner of the domain to get the work removed.

Though this is great news and certainly puts Joyent in a better light. The initial response was still not what I would characterize as appropriate. I will update again when/if the content is removed.

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