Having handled over 1000 cases of copyright infringement over the years, many of which required a DMCA notice to resolve, I’ve seen a great deal of variety in the way that hosts handle these procedures.
I see hosts that refuse to comply with takedown notices, even to the point of defending obvious spam blogs. I’ve seen hosts leap at the first sign of any trouble and quickly handle even minor infringements, at times going to unnecessary extremes. Usually though, hosts take a very balanced approach to these issues, working to both comply with the law and balance that with their customer’s rights. 99 times out of a hundred, the notice is handled and neither side is inconvenienced more than necessary or appropriate.
However, it is the 1% exception that gives me most of my headaches and I recently had one such case involving the domain host iPower.com.
It was a strange tale to say the least and, though it has a happy ending, it is a cautionary tale for both customer and copyright holder alike.
(Note: Since this is a case I handled for a client as part of my consulting practice, I am leaving names other specifics out of the case. I have the client’s permission to discuss this case with private information removed.)
I was working for a client who was preparing for a new wave of legal action against a repeat infringer. The individual had set up a new site using iPower and was using my client’s copyrighted works on it. After verifying the ownership of the works, including copyright registrations that predate the infringer’s claims, and that that the use was infringing, I was extremely sure of the validity of the notice but, knowing about this particular infringer, I expected trouble.
However, I didn’t realize that the trouble would come from the host.
I filed the notice on a Wednesday, via both email and fax. iPower confirmed receipt almost immediately and notified the client involved, giving them 48 hours to remove the content with a notice that, if it wasn’t removed, the account would be disconnected. Five days later, however, nothing had happened. I wrote again on Monday and again on Tuesday for an update with no luck. By this point, my client was wondering what was going on and I had no good answers.
The next day, Wednesday, I received a notice that the client had filed a counter-notice and that the content would not be removed. I explained that the DMCA specifies that the content is supposed to be restored after 10-14 days (see g) of downtime to allow the copyright holder time to seek an injunction, which my client was already preparing for. The content had never gone down and, to make matters worse, I had not been provided a copy of the counter-notice with the necessary information to seek the injunction.
When the counter-notice was provided, which you can see in thumbnail to the right, it was almost completely illegible. Much of the contact information, wording of the notice and even the relevant links were either horribly muddled or unreadable.
I requested a clear version of the notice and iPower said that they were going to request one from the client.
Then the waiting game began again. Over a week passed with no response, despite prodding.
Then, out of the blue, the site involved went down, replaced with a “suspended” page. iPower eventually confirmed that they had removed the site after the client had refused to provide a clear copy of their counter-notice.
The situation was puzzling but resolved. After several weeks of downtime, the site has not moved or reopened, making it a definite win, but one that has me scratching my head.
To say that this case was out of the ordinary is putting it mildly. Since I am not a lawyer, I work with them on many cases and this was one of them, working to remove the site while other action was being prepared and taken.
The problem is that, whether you love or hate the DMCA takedown system, there is a rhythm to it and a procedure to follow and iPower’s system violated the protocol in many ways.
- Failure to Remove Content: To be clear, a host does not have to remove content when given a DMCA notice. They can leave the content up but they risk being held liable for any infringement that is taking place. However, iPower did not remove the content, even after the 48-hour window had passed, despite obviously wanting to enjoy protection under the DMCA.
- Improper Handling of Counter-Notice: With a counter-notice, the host is supposed to restore access to the content in 10-14 business days. This gives copyright holders time to seek an injunction in the event the counter-notice is false. Since the content never came down, there was no window of opportunity.
- Accepting a Bad Counter-Notice: More to the point, the counter-notice itself was extremely flawed in that it was unreadable. I’ll agree that it was, most likely, a complete notice but there was no way to tell from what they received. Waiting until a legible notice had been filed and could be provided to the copyright holder would have been much better all around.
There were other, minor problems, including the fact different email accounts kept handling information on iPower’s side, making it difficult to track the progress of the case, but these are the big issues that arose.
It’s a lot more frustration than what should have come from a legitimate filing, but it was the situation iPower created for me.
The Bitter Irony
This is actually iPower’s secont appearance on PT. You can find my first mention of them from back in 2005 here.
That article seems ironic in hindsight as it chastised iPower for being too aggressive in responding to notices, nuking an entire domain for one or two infringing works. I was actually relieved to see iPower giving the client a chance to ratify things by hand before taking that approach, however, their handling of the incident still leaves a lot to be desired and, clearly, in the past 4.5 years they really haven’t gotten the hang of handling takedown notices.
This is a big part of why I offer DMCA solutions to Web hosts, and why it is often necessary. Simply put, DMCA handling is not easy and very few hosts, especially smaller ones, have it completely right.
However, you certainly don’t need my help to get it right, considering there are good role models out there to emulate.
This incident has left me with a lot of unanswered questions. Why was the work never removed? Why did iPower accept an unreadable counter-notice? Would they do that for other legal notices? And why did they change their mind after the client refused to provide a new one?
I don’t have good answers. Though I was happy to see iPower be more customer-oriented with their process, it seems as if they’ve taken it to a new extreme. Worse still, their procedure for handling such complaints now seems to be erratic and scattered. This makes me nervous both as someone who may have to file a notice and as someone with friends who host there.
Though I disagreed with their previous policy, at least it made sense. Now, the logic seems to have gone out the window and doesn’t seem to make any sense.
My hope is that this was a one-time event, a case caused by an inexperienced abuse/support team member unfamiliar with the procedure. However, given the history of the company, I’m worried that it could be indicative of a larger problem and one that isn’t going to go away.