Slashdot Mirror
Copyright Legitimacy vs. Defending Clients?
trmj asks: "I run a hosting company, and today I received an e-mail, claiming to be from an animation firm, about one of my clients hosting pirated information. As usual, before entertaining a claim of this sort, I researched the claim (there was a bit of legitimacy in it) and what the laws are governing this issue. After that, I replied in the appropriate manner, however, found that the original e-mail address was not valid, leading to the discovery that neither was the e-mail. As a hosting provider, how far should I go to protect the rights of my clients while upholding the law, and still verify every claim that comes in?"
If they are, then I tar up their files as proof of the content, send them a nice email saying "You're account has been terminated for breaking the following provisions of the Terms of Service you agreed to", delete their account, and BCC in the owner of the copyrighted material. This is the best way I've seen to handle it yet, and it accomplishes a number of things that are important to do IMO: Keep a copy of the data in question before deleting it, let the 'client' know they've broken your TOS and are losing the service as a result, lets the owner of the copyright know that you've dealt with the situation effectivley and you take matters like that serious(which as a hosting provider, you have to)
If the client isn't hosting copyrighted material, an email should get sent back to the person asking for clarification, as you did. As for the question of how far you should go to protecting rights while upholding the law, I don't think they're mutally exclusive and you(and all hosting providers) should do as much as they can to use good judgement..
> You confuse legal notification with knowledge.
No I don't.
> The poster already has actual knowledge of the
> problem thanks to his/her diligence.
I doubt that the copyright owner can prove that.
> Had the poster simply stumbled on the problem,
> it would have to be dealt with.
He should deal with it anyway, but that has nothing to do with my point, which is that anonymous emails are not DMCA takedown notices. No ISP is obligated to investigate allegations contained in anonymous emails. The suggestion that one should respond to such with a reply saying that the sender should follow up with a valid takedown notice via registered mail is excellent. If the reply bounces, tough.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Actually, this slashdotter has had to handle WAY too many of these. It's MY opinion that a trivially forgable email is NOT a proper notification as required by the DMCA. Autoreplying requesting documents by certified mail gets rid of most of the bozos, and has the added bonus of costing the bounty hunters another $500 in legal time to prepare the paperwork.
Also entertaining is pointing out the blatent and obvious fallacies in their email, and reminding them that it is an official document prepared under penalty of perjury. I've gotten DMCA notices about usenet postings on other ISPs due to it having an ao.net email address. (Cult of Scientology, generally)
Once you get rid of the bozos by requesting documents, you're left with probable legitimate claims... people with EBooks in their web folders, things like that. At that point we comply with the letter of the law with a chmod 600 and tell the subscriber to deal with it.
It's pragmatic. You protect most of your users from the bozos, and don't take an (expensive) corperate stand one way or the other on real copyright infringement cases.
--Dan
Not to drown in semantics, but the poster wants to know his legal obligation, not what he can get away with. With actual knowledge, safe harbor's dead unless he insists on lying about it, and I'm not giving advice on how to commit perjury.
As for notice, greater formality is required before the ISP is *forced* to act. Registered mail is unnecessary (anyway, it's for valuable documents like stock certificates). Certified mail and even paper itself are also unnecessary. DMCA requires "A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." Electronic signature?
Last, I wouldn't blow off a halfway credible notification anyway, unless investigating it was simply impractical. This one was evidently credible and fraudulent, not anonymous, as discovered only when the person tried to reply. The email was also correct, though perhaps trivially. (I wonder as to the motivation, a peripheral issue.) Also aside from just wanting to do the right thing -- as the poster appears to -- the email could be one bit of evidence that the ISP had actual knowledge, even if it didn't. Staying out of court is often a lot cheaper than having a great defense when you get there.
I would at a minimum follow up with a request for a DMCA-compliant takedown notice rather than take a chance on my being wrong or ending up in hot water regardless.
This is not an attempt to provide the legal advice this person should get if they are unfamiliar with their legal obligations, even if I do happen to be a lawyer.