Ask Slashdot: Hosting Services That Don't Overreact To DMCA Requests?

tobiasly (524456) writes I run a few websites which are occasionally the target of bogus DMCA takedown requests. Even a cursory look at these requests would reveal that the content these requests try to have removed are not even eligible for copyright (for example, someone named "John Smith" decides he wants to have every instance of his name removed from the internet, so he claims he has a copyright on "John Smith", and the comment section of my website has that name somewhere.) I'm guessing most webmasters of sites with significant traffic face this problem, but I'm having difficulty finding information on domain registrars' and hosting providers' DMCA response policies. Most seem to over-react and require an official counter-response. I'm worried I'll miss one of these someday and find that my entire domain was suspended as a result. Both my domain registrar and hosting provider have forwarded these notices in the past. I'm also worried that they're forwarding my response (including personal details) to the original complainant. Which domain registrars and hosting providers have you found who handle these complaints in a reasonable manner, and filter out the ones that are obviously bogus? Which ones have a clearly stated policy regarding these requests, and respect the site owner's privacy? Some of these domains are .us TLD, which unfortunately will limit my choice to U.S.-based companies.

Comments

Over-reacting is required

[Anonymous Coward]

You don't get to pick and choose on a spectrum of "obeying the law." The DMCA is so poorly written that even a little hesitation or restraint causes a business to lose its liability protection under the "red flag" tests.

Pick a nation on the USTR's shitlist and host your stuff there.

Re:Over-reacting is required

[Anonymous Coward]

That, and petition your senator and congresscritter to have this poorly written, costly law, fixed to be less poor and less expensive.

Re:Over-reacting is required

[fustakrakich]

Petitioning is masturbation. Vote the fuckers out!

Oh, and good luck

Re:Over-reacting is required

[Cajun Hell]

That's true for hosting content, but not the DNS issue. There's nothing in DMCA about registrars being required to fuck with domain names in response to someone complaining that the domain references a host that might be hosting alleged infringing material. Registrar coercion isn't in the league of legality (whoa, that's acatchy phrase) as host coercion.

Re:Over-reacting is required

[tomhath]

People spamming DMCA take downs to build opposition to DMCA. Just ask them for specifics, they won't be able to provide any.

Re:Over-reacting is required

[Anonymous Coward]

Clinton signed the DMCA into law. I forgot he was a Republican :)

Re:Over-reacting is required

[Chas]

Voting is masturbation with 10 grit sandpaper and a belt sander.

Shoot the fuckers and make sure the next bastard put in his place is appropriately scared for his life.

Re:Over-reacting is required

[mydn]

As close as you can be without the title.

Re:Over-reacting is required

[Anonymous Coward]

Shooting is masturbation with one of those anti-rape condoms that have little barbs that hook into skin.

Once violence is on the table, anything can happen, and usually for the worse. Look at almost every revolution ever (other than our own) - revolutionary fervor becomes rabid paranoia as political enemies are dealt with and a new, potentially worse order is established.

Re:Over-reacting is required

[david672orford]

You don't get to pick and choose on a spectrum of "obeying the law." The DMCA is so poorly written that even a little hesitation or restraint causes a business to lose its liability protection under the "red flag" tests.

To preserve its safe harbor protection an ISP must take material down whenever it receives a DMCA notice. They DMCA notice also relieves the ISP from potential liability to the owner of the site taken down.

But what should the ISP do if it receives a piece of paper with the words "DMCA Notice" at the top but it does not contain all of the legally required information? Take the site down anyway? Then they could be liable to the site owner. What if some of the answers are not just hard to believe, but actually nonsensical? What if it is signed "Mickey Mouse"? Or what about this requirement:

''(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site."

What if the complainant wrote "The copyright protected work is my name, John Jones." That is a nonsense answer. It is not much different than writing "Not telling!" or "Get lost!" in the space. I would say that the ISP should send the request back with a note that it is not a legally valid DMCA notice. The ISP is not expected to verify that the information provided is true, but they should verify that all of the required information is present.

Re:Over-reacting is required

[Nyder]

Charge for DMCA take down request. Charge 100x for fake/bogus/false ones.

Not sure why places don't do that, If i was google, I'd charge a $1000 for every false/wrong DMCA notice I got, I'm guessing that will start getting people checking them before sending them.

Re:Over-reacting is required

[Anonymous Coward]

Bingo.

As for the OP's question, don't host on tier 2,3,4,5 hosts. Go straight to some place you can put your own machine in a cage like HE.net

They will respond to DMCA's by sending it to you, but you must respond or they will disconnect your machine. This isn't any different if your IP address is found to be serving malware or sending out spam.

When you host at a tier 2 system (eg someone at he.net) or tier 3 (eg someone reselling a hosting service that is hosted at he.net) that puts the entire host/reseller at risk if the DMCA isn't responded to within 24 hours, hence why your get the overreaction.

But as someone else mentioned, if you want to avoid the DMCA issue entirely you need to host outside the US and in a country that doesn't have DMCA-like takedown laws, which also puts your data at risk. So the fact that you had to ask this question tells me that you aren't willing to put in the effort to prevent DMCA violations on your site, or you run something unmoderated like 4chan

Re:Over-reacting is required

[geminidomino]

Then what does that make Obama?

Re:Over-reacting is required

[mysidia]

Pick a nation on the USTR's shitlist and host your stuff there.

There is another option... host yourself. This takes care of DMCA requests against the hosting provider.

As for DNS...... DNS registrars and ISPs do not host the content, and there is no DMCA letters they are required to honor in the first place, a court order should be required, so shop around for providers until you find one that tells you they won't turn off your domain or interfere with the internet connectivity to your IP addresses based on a DMCA letter ("legitimate" or not).

Re:Over-reacting is required

[Anon-Admin]

Or better yet start filing DCMA take down notices on there websites. Nothing makes congress act faster that when it effects there campaign.

Re:Over-reacting is required

[mysidia]

They will respond to DMCA's by sending it to you, but you must respond or they will disconnect your machine. This isn't any different if your IP address is found to be serving malware or sending out spam.

It is neither required, nor good for an ISP to take any actions based on a letter purporting to be a DMCA takedown request. The end user should always be the recipient of the letter. If the ISP handles it in any way: this should be solely to forward the letter to the proper recipient.

With regards to copyrights, a court order is and should be required to require disconnection of any telecommunication or IP networking services, etc.

As long as the ISP is a conduit and not hosting the content, then the Section 512(a) safe harbor applies.

The DMCA’s exemption of providers of routing and transmission services (a.k.a. “mere conduits”) from the notice-and-takedown requirements in 512(c) is entirely consistent with the fact that such providers do not store or control user content.47 Nevertheless, the exemption has

operated in the context of P2P file-sharing to negate the scalable enforcement mechanism that notice and takedown provides. Inasmuch as P2P file-sharing shifts the locus of infringing activity from the storage function to the transmission function, it places such activity beyond the knowledge and control of the OSP and thus beyond the reach of the enforcement scheme created by 512(c).48

As a consequence of the exemption of conduit providers from the notice and takedown requirements of 512(c), the expedited subpoena provision in the DMCA— 512(h)—has also been held inapplicable to these providers.49 This is because the application for a subpoena under 512(h) must include a copy of the notice described in 512(c)(3)(A).

Re:Over-reacting is required

[amiga3D]

Just another lying politician. They come in both Republican and Democrat flavors. It's almost like there was only one party and all the supposed differences were just smoke and mirrors designed to confuse the public.

Re:Over-reacting is required

[Anonymous Coward]

Check the Political Compass.

Re:Over-reacting is required

[shaitand]

+1 - This

Re:Over-reacting is required

[geminidomino]

That was my point... apparently, I'm getting too old to be able to snark on the internet anymore.

Re:Over-reacting is required

[BitterOak]

As close as you can be without the title.

So, when a Republican does something bad, it's because they're a Republican (further reinforcing the notion that Republicans are "bad".) When a Democrat does something bad, it's because they're acting Republican (further reinforcing the notion that Republicans are "bad".)

Re:Over-reacting is required

[Jane Q. Public]

That, and petition your senator and congresscritter to have this poorly written, costly law, fixed to be less poor and less expensive.

The easiest way to "fix" this law is to remove the takedown provisions altogether.

Prior to DMCA, a person had to show copyright infringement in court before they could force someone to remove a work. That was a reasonable law that actually worked. People were not inclined to infringe, because the penalties could be fairly severe.

But as part of the same package, it also used to be that you had to actually CLAIM a copyright in order to enforce it. That's why we have little copyright symbols in our charactersets. Copyright (C) 2005 blah blah.

As we have clearly -- I mean very clearly -- seen, things were better they way they were. The current setup panders to the corporate abusers, and in some cases even the small abusers, but in any event the abusers. Anybody can put anything up on the internet and rails hell over even a minor issue that turns out to be "fair use" under copyright law... but they've already been ordered to take their website down until they can prove it.

This amounts to shifting the burden of proof -- and all the risks -- to the defendant. That's not the way American law is supposed to work.

Re:Over-reacting is required

[tepples]

Support in both houses would have been enough to override a veto.

Re:Over-reacting is required

[LF11]

The Republican and Democrat parties are both private corporations. What does that make you, voting for either one?

Re:Over-reacting is required

[Anonymous Coward]

It isn't enough to just pick one from the list. Canada is listed in the "Priority Watch List" category with Russia and yet I can assure you Canadian ISPs take copyright issues seriously.

Re:Over-reacting is required

[Anonymous Coward]

Self-hosting doesn't get you out of the DMCA trap. You might be running the servers yourself but your ISP's the one who allows you access to the Internet, so they'll be the ones the DMCA letter is directed to if they can't get to you directly. It's not hard to find out which ISPs host which sites with a little work.

Re:Over-reacting is required

[Chas]

The problem is, government only functions properly when there's a certain amount of fear in the electorate for the populace.

Here in America, that ceased decades ago.

Now the slimy bastards fear nothing. And, thus, are willing to do ANYTHING, so long as it enriches them.

Re:Over-reacting is required

[Anonymous Coward]

That's why we need random acts of violence against all corrupt politicians rather than an actual revolution.

Re:Over-reacting is required

[Anonymous Coward]

It's called the Democratic party. Good grief.

Re:Over-reacting is required

[HappyPsycho]

I don't believe you dealt with the GPs point, from what I'm reading in your post you have covered a normal ISP and (definition assumed from the GPs post) Tier 1 hosting (you put your own box in a cage at ISPs site).

If you buy a shared hosting account the ISP is hosting the content on their machines and based on your statement is not eligible for the protections you describe.

Re:Over-reacting is required

[HappyPsycho]

As much as I agree with your statements (and would love to see them implemented), is that what the law says?

Until the law is updated to allow the ISPs to apply common sense to the decision your utopian vision will remain just that.

Re:Over-reacting is required

[grahamm]

Why would the takedown notice be sent to the ISP? Would it not be sent to one of the contacts in the WHOIS for the domain?

Do most DMCA notices not just require taking down a single URL rather than all pages in a domain? In which case it is the site owner, or their webmaster, who has to action the notice, so sending the notice to the ISP will just delay the process.

Re:Over-reacting is required

[Anonymous Coward]

A DMCA notice requires a number of things to be legally operable. If even one of those things are missing or invalid, the notice itself is invalid.

Re:Over-reacting is required

[mysidia]

If you buy a shared hosting account the ISP is hosting the content on their machines

I am replying to the parent. I am agreeing that buying your own hard disk storage and network endpoint is the way to go if you are concerned about a provider giving an overzealous response to a DMCA letter.

Further, I am disagreeing with the parent's point They will respond to DMCA's by sending it to you, but you must respond or they will disconnect your machine

Since you can avoid that by finding a Tier1,2, or 3 internet service provider who will specifically agree to not do so, and this provider is still protected by the safe harbor.

Then I point out the need to be judicious in your selection of DNS registrars. Although DNS registrars are not protected by DMCA safe harbor and also not hosting the content, some large corporations _will_ target DNS registrars and send them DMCA letters, and some DNS registrars will overzealously shutdown the domain.

Finally, I would add.... that none of these methods mean that you won't ultimately be liable if there would be a legitimate reason for a DMCA takedown request.

However, when co-locating: it should be within nobody's power but yours to decide to turn services off due to copyright issues, until and unless you infringe and a court order is issued requiring your entire site to be removed.

Re:Over-reacting is required

[geminidomino]

What makes you think I vote for either one?

Re:Over-reacting is required

[sillybilly]

I blame surveillance technology for it. I can't even pick my nose at a red light anymore, a camera is staring at me, for my own security. As the means of mass control, thought control become stronger, the guys in charge fear less and less or a rebellion and are willing to exercise stronger and stronger abuse of power and oppression. One of the great tools is smart phones and texting - as in can you imagine a Ukrainian-like social turmoil in the US without the authorities instantly knowing about it from everybody texting it? And whoever talks crap, like most of the nerds are Slashdot, can be surgically removed and disconnected from the rest? Freedom of speech and expression guaranteed by the very first amendment? Yeah right, and yeah right for good reason, because even the declaration of independence says such political turmoil should not be taken lightly, rebellion and violence for no good reason is just a waste. The biggest problem with free speech is free speech to an uneducated public who can act like a mindless mob, and if you were talking to totally educated and self controlled individuals, acting in a Sartre-like responsible way, no amount of free speech thrown at them should be able to make them rebel unless they were willing to rebel even in the absence of it anyway, when they can form their own opinions regardless of what words are thrown at them. But as George Carlin says, promoting education is not in the interest of the powers that be, the powers that be just want people smart enough to push the buttons, but not smart enough to realize how badly they are getting screwed. By the way the only thing that cannot be taken from you is what you know, but in fact, even that can be taken, through memory erasing drugs or lobotomies. That's the ultimate battle frontier, the mind, not the body.

Re:Over-reacting is required

[Anonymous Coward]

Takedown notices are often sent direct to the datacenter who can be two or three steps removed from the actual owner of the website.

Re:Over-reacting is required

[Anonymous Coward]

Seems to me some spamming could be good motivation.. politician's websites.. about 4 days before an election should do it.. I think they would only improve a law if it was personal to them..

Re:Over-reacting is required

[sjames]

Well, it's hard to deny that the Ds and Rs have both shifted to the right, not the left.

Re:Over-reacting is required

[Anonymous Coward]

You don't need a revolution. You just need politicians to understand there are consequences for their unacceptable behavior.
A few shootings *might* help with that. Not that I condone shooting but until we find some way of making politicians have some
consequence for their action they will continue to do what is in their best interest and ignore the commoner.

Re:Over-reacting is required

[Anonymous Coward]

You don't get to pick and choose on a spectrum of "obeying the law." The DMCA is so poorly written that even a little hesitation or restraint causes a business to lose its liability protection under the "red flag" tests.

Pick a nation on the USTR's shitlist and host your stuff there.

Wow, I can understand China and Pakistan but when CANADA makes the list then maybe it's time to
rethink whether it's not US that has the problem.

John Smith?

[gnasher719]

In the case of the "John Smith": When someone sends a DMCA takedown notice, they declare under penalty of perjury that they have copyright on the work that they believe you are infringing upon. (If the are mistaken about the work - the one you published is not the one that they have the copyright for, or they are wrong about the infringing - you have a license, that's fine, but they _must_ have the copyright for _some_ work). So you can take them to court and give them an expensive lesson in copyright law and the DMCA law.

Re:John Smith?

[Anonymous Coward]

And give yourself an expensive lesson in why it makes no sense to give expensive lessons.

Re:John Smith?

[msauve]

" you can take them to court and give them an expensive lesson in copyright law and the DMCA law."

Sure, expensive for both parties.

Re:John Smith?

[gurps_npc]

You are kidding right? Are you that foolish?

Court is expensive. Worse, often the 'John Smith" guy is a lawyer, working for a client, both of whom are located outside the USA. So even when you win, you get nothing.

Basically your strategy is to spend tens of thousands of dollars to get absolutely nothing done.

Re:John Smith?

[Anonymous Coward]

Why must it cost you? You can't apply the penalty of perjury to anyone, only courts can. All you'd have to do is point it out and deliver enough evidence to the court that they're wrong, and the court is the one that goes after them. Not John Smith vs. Company, but The State of (state) vs. Company. It might be expensive for you to sue them for damages, alright here's your $20, but it cost you eight years and $100,000....but judges love to drag people in from all the way across the country to bitch at them for their wrongs.

Re:John Smith?

[mydn]

And make money for lawyers all around. Which is the real purpose of this law.

Re:John Smith?

[Tokolosh]

...they declare under penalty of perjury that they have copyright on the work that they believe you are infringing upon.

IANAL, but my limited understanding is that the original claim is NOT under penalty of perjury. However, if you dispute the takedown, your counterclain IS under penalty of perjury.

Can someone confirm or correct, please.

Re:John Smith?

[Anubis IV]

Perjury is a felony in the US, carrying potentially serious jail time as a sentence. As such, it's not a civil matter that you need to be involved in; the criminal courts handle this stuff. Just let the courts or states' attorneys know that the guy is engaging in perjury, give them evidence of it, and they'll either take care of it or not. It costs you very little, but potentially costs them quite a bit.

Re:John Smith?

[Anonymous Coward]

Not really. There are offshore firms who specialize in spamming DMCA takedown requests, and who really don't care much about the perjury penalty because they are not in the US, but are in a WIPO country, so their DMCA request has to be honored... but there is no criminal extradition treaty they have to worry about.

Re:John Smith?

[mysidia]

It does seem to make much more sense for OSPs to charge a reasonable civil compliance fee per DMCA action, in order to receive and process each letter through their legal staff, commesurable with the costs of opening, reading, interpreting, and acting upon the DMCA letter. The safe harbor IS suposed to provide additional protections for the OSP from liability for what their users do without their knowledge; policing distribution of their work is the copyright holder's cost.

It wouldn't be fair for them to be able to totally outsource all their copyright enforcement costs to society; the rights holder needs to pay something from their compensation for producing the work, in order to effectively enforce their rights.

Unless you caught evidence of them discussing how they're going to cause people pain by generating fraudulent letters; you probably don't have good enough evidence.

They will probably always claim the letter was a mistake or error and based on a good faith belief.

Also, almost everyone has copyright in some work. Under the Berne convention and US law, everything you write is automatically copyrighted at the moment of its registration, and you don't have to formally register your copyright, in order to successfully take actions against a severe enough infringement.

There is no requirement to register your copyright, in order to send a DMCA letter, either

Perjury will essentially be impossible to prove, so, they almost might as well have not included the penalty.

Re:John Smith?

[Anonymous Coward]

Perjury is a felony in the US, carrying potentially serious jail time as a sentence.

It's not like there are "perjury cops" going around looking for offenders, that you can call to investigate a suspected crime. Perjury is just another mostly-unenforced law that sometimes gets piled onto someone's list of charges, whenever the government has already decided to attack them for some other reason. Think of it as one of those "..with a gun" or hate-crime laws. You don't charge someone for "burglary with a gun" unless you're already chaging them for burglary too, just as you don't charge anyone for "murder as a hate crime" unless there's also a murder charge.

Now, if you can otherwise provide evidence of these people committing some other crime (don't think in terms of perjury; look for totally different things) for which they eventually get charged, then you might be able to get perjury piled on, as yet another bargaining chip when the plea deal gets negotiated. But as for prosecution for that one crime: not gonna happen. Nobody is even going to investigate.

If you want this law enforced, all the expense will be on you.

Re:John Smith?

[gnasher719]

Perjury will essentially be impossible to prove, so, they almost might as well have not included the penalty.

What? That's nonsense. You must claim _under penalty of perjury_ that some work is infringed and you are or represent the copyright holder. There should be nothing easier to prove or disprove.

Re:John Smith?

[taustin]

That the other guy is living in his car will, no doubt, be a great comfort to me as I'm living in my car.

Re:John Smith?

[mysidia]

You must claim _under penalty of perjury_ that some work is infringed and you are or represent the copyright holder.

False. Only the second part is required to be under penalty of perjury: the part where you claim that you are or represent the copyright holder of the work alleged to be infringed; the allegation of infringement is not under a penalty of perjury, even if it's obviously bogus.

If you do commit this perjury; it is not going to be provable by a third party, unless the copyright work you are alleging to be infringed is someone else's work, and the third party can prove you don't represent the copyright holder.

If the DMCA letter writer slaps on an allegation of infringement of their unpublished title Xyz; nobody can prove it's perjury, at least, without the admission of the person who sent the letter.

See the text from the act:

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

It's not overreaction

[gnasher719]

Takedown + waiting for a counter notice is not overreacting, it is the appropriate reaction. And of course they have to send your counter notice to the claimant. What are you afraid of? Just write in your counter notice to John Smith "I own the copyright on all the works on my site, and if John Smith thinks he can force me to remove an article about a different person with the same name, I'd like to know what drugs he is taking. "

Re:It's not overreaction

[russotto]

A DMCA counternotice is literally an invitation to sue.

Re:It's not overreaction

[Anonymous Coward]

I'd like to see a suit where the claimant requests takedown of things with the same name as him, but not actually created by him.

Re:It's not overreaction

[Anonymous Coward]

A DMCA counternotice is literally an invitation to sue.

In this case, it's saying, "So sue me if you want to see a judge laugh you out of court." Sometimes "so sue me" is the right response. I've had people (including a city) threaten to sue me. Sadly, they didn't follow through, because they knew they had not case. Now, I didn't taunt them with "sue me", because there was no need.

None

[Anonymous Coward]

A hosting service is there to run a business, not shield you from the legal process, even if it is being misapplied or abused. Their obligation is to follow the terms of the DMCA and that is all.

Any hosting service that did offer such a protection would need to charge the equivalent of having an attorney on retainer plus enough funds to fight it out, i.e. more than you could afford to pay for such hosting. Even then you wouldn't know if the attorney they hired was any good.

Re:None

[unrtst]

A hosting service is there to run a business, not shield you from the legal process, even if it is being misapplied or abused. Their obligation is to follow the terms of the DMCA and that is all.

Any hosting service that did offer such a protection would need to charge the equivalent of having an attorney on retainer plus enough funds to fight it out, i.e. more than you could afford to pay for such hosting. Even then you wouldn't know if the attorney they hired was any good.

That's actually a pretty good business idea, especially for the thousands of hosting companies that are struggling (or already died) because of the big names taking over the game. Not all of them could do it, but someone could, especially if, within their small ranks of coworkers, partners, and investors, they already know a small legal team that is up for making some extra money. Heck, a law firm could buy up a couple small hosting providers and turn it into just such a thing.

Re:None

[tlhIngan]

That's actually a pretty good business idea, especially for the thousands of hosting companies that are struggling (or already died) because of the big names taking over the game. Not all of them could do it, but someone could, especially if, within their small ranks of coworkers, partners, and investors, they already know a small legal team that is up for making some extra money. Heck, a law firm could buy up a couple small hosting providers and turn it into just such a thing.

Except if you become known as the hosting provider that fights for its customers, guess which customers you'll end up attracting?

Yes, you'll get those actually hosting copyrighted material that don't belong to them!

It's one thing to fight for what is legitimately your copyrighted content. But quite another when you're hosting other people's copyrighted material, to whom your customer may not have a distribution agreement with.

And unfortunately, the latter will ruin it for everyone else.

Re:None

[Anonymous Coward]

SO what you're advocating is for all hosting companies to actually pay for liability insurance and retain a lawyer for all DMCA notices to be forwarded to. If you're actually liable, you spend the money to fix and be proactive on preventing further issues. If you're not liable, you smile gleefully as your lawyer goes to bat for you + damages, and all you pay is your insurance deductible (which could be repaid if the lawyer wins damages)

TL;DR: this shit already exists.

Re:None

[unrtst]

SO what you're advocating is for all hosting companies to actually pay for liability insurance and retain a lawyer ...

No. Not all hosting companies. I'm saying that I know of none that provide any such service. Insurance and/or your own lawyer isn't the same either - that'll cost a lot more since it's just you paying them, and it'll be hard to find a group that is both competent in that area and not already owned by big content providers.

Re:None

[unrtst]

Your being overly pessimistic. If lawyers are running it, your agreement with them is almost certainly going to include their own escape clauses and a clear contract that you not violate the law. If you are found to be regularly abusing their services (actually breaking the law), then they'll just shitcan you and charge a big fee for doing so.

This sort of business would, IMO, attract many, including the original poster, and many legitimate businesses that may not have in house legal teams competent in this area (that's most businesses). Losing your domain can suck big time for anyone. This would prevent that from happening via trolls, spammers, nefarious uses of the system, mistakes, or just plain phony requests. Any legitimate request could then be easily escalated and handled in a timely manor, since they can just call you if it's legit (filtering out the useless requests).

It *could* be a legal group that helps anyone with sites anywhere, but the added tie to the actual hosting company and services would ensure they don't get jacked with for illegitimate requests.

"Ruin it for everyone else"... I'm sure that was said of every shared hosting thing that's come to light in the past 10 years. Ex. who would put all their servers at risk just to host email for someone else?

Re:None

[Anonymous Coward]

> and charge a big fee for doing so.

So naïve. Good luck collecting that.

Re:None

[Anonymous Coward]

Their obligation is to follow the terms of the DMCA and that is all.

Actually, their obligation is considerably less than that. DMCA says what is the most they can do for their customers, without becoming liable.

As people learned once this law collided with the real world, a hosting provider can do less for the customer and also avoid liability. They can immediately fold and pull content as soon as they get a takedown notice, and not even bother to wait for a counter-notice. Pulling the content also shields them. And since they can do that, and it's a lot less of a hassle then opening a dialog and tracking the state of fuck-knows-how-many hosted objects, many of them sensibly do that. That's what you or I would do too, if we were (say) Google and processing thousands of robot-spammed takedown notices per day, instead of the one or two per year that a naive 1990s legislator might predict.

Re:None

[russotto]

As people learned once this law collided with the real world, a hosting provider can do less for the customer and also avoid liability. They can immediately fold and pull content as soon as they get a takedown notice, and not even bother to wait for a counter-notice.

Lobbyists for the MPAA and RIAA wrote this law. This is exactly what they wanted and expected. It's also a major reason why the DMCA is unconstitutional, though the courts will take it at face value so they can pretend otherwise.

Look for one that does not take email DMCA notices

[silas_moeckel]

That filters out 99% of the garbage right there. Just look at their web site.

If you don't want personal info it as a business with a business address (po box works) and possibly a lawyer to write up the one copy paste counter notice you will ever need and pay them to deal with the inbound complaints.

If your just hosting remember your paying what a few bucks a month? DMCA notices are a cost they get shuffled in and out as quickly as possible. If you want them to look at them you need to be a bigger fish or worth there while so at least dedicated server if not a rack or more.

Solution: Register .IO + Bullet Proof hosting

[Adeptus_Luminati]

As a Canadian, I'm finding the USA's over reach getting more and more excessive, to the point that my next online business will avoid have anything hosted, purchased, programmed, owned or registered in the USA. It's getting to the point that in some circumstances, avoiding selling anything to USA customers saves tonnes of money and time with expensive lawyers... at the cost of 330 Million potential customers... but hey... there's over a 1 billion other internet users out there and growing.

Solution: Register .IO out of some Luxemburg or Monaco or other offshore registrar, then get bullet proof hosting and lastly apply a filter that throws out all DMCA emails. Problem solved?

Migrate to EU based hosting

[Anonymous Coward]

Seriously, if you are worried about downtime due to bogus DMCA requests and bizzare or unconstitutional law enforcement actions and court rulings, get rid of .com and .us domains and host everything outside the US, like in Switzerland or other parts of Europe.

Hivelocity

[Anonymous Coward]

They have been reasonably good at defending against a few unwarranted server shutdown requests. That's all I got.

nearlyfreespeech.net

[Anonymous Coward]

See their CEO's infamous "...and, if left unchecked, a very frightening snake" reply to the UK government making INTERNET SERIOUS legal threats against them.

They host a lot of "on the right side of the law, but only just" content, they make clear exactly what they ban, and they make clear that as long as their customers are obeying the law, they will defend them at all costs.

Plus they're cheap and awesome.

No connection, just a satisfied customer.

forward your users

[MooseTick]

"Some of these domains are .us TLD, which unfortunately will limit my choice to U.S.-based companies."

Make a landing page on the .us servers that forwards them to servers elsewhere. Almost no one goes to web sites by name anyway. Forward it for now. Eventually your users will bookmark or remember the new site.

In reality, you can't not get sued if you put yourself out there. Anyone can sue you for anything. It doesnt' mean they can win, but they can still get the ball rolling. And it doesn't cost that much to sue, so they don't have to have expensive lawyers. And even if you countersued for damages, that doesn't mean they will have the ability to pay.

Fight fire with a camouflage conflagration

[smoothnorman]

Establish a side-line where you manufacture credible 'DMOA' legalistic take-down threats to -all- users of a hosting service (for you know every "thief doth fear each bush an officer") and, of course, copy the host's office themselves. Hide ye in the vast underbrush of your own making; because, really that's all the DMCA is, is a bully for hire.

in short, there arent.

[nimbius]

The letter of the DMCA law works hard to make sure people who do not react properly to the issuance of a DMCA face rather brutal punishment. This is partly because of the history of infringement on the internet, that major companies like godaddy simply couldnt be reached while other emerging companies barely had offices and just ran local mom-and-pop shops. record labels crafted the DMCA, the incisors of their efforts based on the industries lack of a standard to handle legitimate problems in a timely manner.
the other reason the punishment is pretty brutal, is because record label recording industry protection rackets and even record labels themselves had been brutalized for almost a decade by declining sales in favour of a far more reasonable distribution method: the internet. Locking down everything from unsigned independent artists with DMCA takedowns as well as fair-use snippets meant the industry could keep its fat foot wedged in the door music and talent with relatively little blowback (its their law after all..) the DMCA, one could argue, is also part of the reason the Youtube music awards were basically an advertisement campaign on behalf of the largest record labels in hollywood as it can be used by, and only by, the industry to take out mafia style hits on published independent content through the much maligned 'frivolous DMCA takedown.' Sure, other groups like the church of scientology have tried this in the past, but only the record industry has emerged without punitive retalliation from online services.

What I think i can do is offer a hosting solution that has decent tech support for when these takedowns happen. Try Dreamhost.com, who actively oppose most draconian legislation against the internet like SOPA and PIPA. Vote with your dollars.
full disclosure: i used to work for Dreamhost.

Re:in short, there arent.

[Anonymous Coward]

*slow claps*

Re:in short, there arent.

[ReallyEvilCanine]

I confirm. I've been using dreamhost for years.

Uhh

[ADRA]

I can't say anything about the rest of your post, but being the 'owner' of your domain, you ARE the target of a DMCA takedown, not the hosting provider since you control the content on your site ultimately. They'll hit the provider first, but eventually get to you, as the lawful owner of the domain, DMCA is about you, not them. If the provider sends along your personal contact information as is probably required for a subpoena (maybe a take-down, but I doubt it) then that's what they'll do.

Lawyer? HAHAHAHAH Please.

[Anonymous Coward]

No, real lawyers are not THAT stupid as to sign a document that purgers their testimony; that's how you get disbarred and judges can be VERY VERY pointed in their enforcement.

Any twit that would assert they have copyright on "John Smith", if taken to court, deserves to and WILL loose everything. Do us all a favor and GUT THIS SUCKER IN COURT. Then go have a nice relaxing vacation on the idiot's life savings.

Re:Lawyer? HAHAHAHAH Please.

[jklovanc]

Then go have a nice relaxing vacation on the idiot's life savings.

Not much help if the idiot's life savings is $5.20.

NFSN.net

[TACD]

For this (as well as their other policies) I'd recommend NearlyFreeSpeech.net - they have a DMCA policy page which clearly lays out the requirements that must be met to anybody intending to make a takedown claim. They're run as a pay-what-you-use host for people who have at least a small amount of knowledge of what they're doing (no cPanel interfaces here!) and from their blog and general demeanour it's clear that they are a company run by nerds who Do Things Properly.

I have no doubt that they'd follow the law if issued with a full and proper DMCA notice, but I also have no doubt that they would not give the benefit of the doubt to, or go out of their way to assist somebody filing incomplete or incorrect takedown notices.

(Full disclosure: While I've hosted my small website with NFSN for a number of years I've never received a DMCA takedown notice and I have no material which is at all likely to generate any.)

Re:NFSN.net

[TACD]

Specifically, this post from their blog illustrates how far NFSN will go to defend their users against anybody (in this case, the UK government) who tries to bully them without proper authority.

The official lawyers for the UK government are basically saying on official letterhead (even their own filename contains “Letterhead”), “Hey, we heard you’re small. Well, we’re the world’s 6th largest economy, so we can put you out of business with legal bills if you don’t play ball.” Now, it’s not super-unusual to see a lawyer say something menacing about how if they win, you’ll have to pay their legal fees — even though that’s often not true in the US. What’s different here is that they dropped “if we win” and added “we will ruin you.” Stating that if someone doesn’t cooperate, your strategy will be to run up enough legal bills to put them out of business whether you win or not is a little different. It’s the sort of thing you expect to hear from the smarmy thug lawyer for the big bad corporation in a formulaic TV legal drama. We don’t generally see it in the real world from the legal representatives of a developed country.

Fortunately, they heard wrong. Our excellent legal team is ready, willing, and able to vigorously defend us should the need arise.

So, the story so far is that we asked to have the proper legal process followed, and the UK’s lawyers threatened to destroy us. Despite this, we are refusing to censor our member’s site. We steadfastly believe we are under no legal obligation to do so, that we will prevail in any US legal action that arises from this matter, and that any attempt by the UK government to spend us into oblivion will fail. More news as it happens.

Re:NFSN.net

[russotto]

From the letter to NFSN from the Treasury Solcitor's office:
"Clearly, the publication of personal contact information in the knowledge (or constructive
knowledge) that such publication may lead to harassment of others, is illegal. We do not
wish, however, to cite the relevant law in these circumstances. "
Is there any clearer way for a lawyer to state "Yeah, we got nothing"?

Re:NFSN.net

[Dishevel]

I love this company of the 6 domains I have 5 of them are currently NFSN.

the sixth I do not wish to talk about but it will get moved soon.

Re:NFSN.net

[Anonymous Coward]

From the letter to NFSN from the Treasury Solcitor's office:
"Clearly, the publication of personal contact information in the knowledge (or constructive
knowledge) that such publication may lead to harassment of others, is illegal. We do not
wish, however, to cite the relevant law in these circumstances. "
Is there any clearer way for a lawyer to state "Yeah, we got nothing"?

To be fair, it's probably asking a lot to expect a British lawyer to cite chapter & verse of US law, and it is worth noting that this pretty much certainly would be illegal under English law (it would likely violate the Data Protection Act 1998, for a start), so it is perhaps not unreasonable for them to assume it would be illegal under US law also.

Re: NFSN.net

[Anonymous Coward]

It's fair to assume a giant British law firm doesn't have access to the laws of the world's foremost super-power? A nation which has jurisdiction over the very matter about which they're threatening? We're not talking about a phone book lawyer just passing the bar and sending a letter to a Sudanese company. And if we were, I'd still expect them to be versed on the nation's relevant laws.

LMGTFY

[jklovanc]

Read this. Yes,the take down notice is under penalty of perjury..

Filing a DMCA Notice to Remove Copyrighted Content-for Copyright Holders
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:

1. Your name, address, telephone number, and email address (if any).
2. A description of the copyrighted work that you claim has been infringed.
3. A description of where on the Vimeo Site the material that you claim is infringing may be found, sufficient for VIMEO to locate the material (e.g., the URL).
4. A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
5. A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
6. Your electronic or physical signature.

(emphasis mine)

Re:LMGTFY

[Tokolosh]

4. A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner...

Thanks for this. "Good faith belief" can cover a multitude of sins. The use of copyrighted work does not necessarily have to be authorized by the copyright owner, for instance in the case of "fair use". Nevertheless, it can be subject to a legal takedown. What a messed-up system.

Re:LMGTFY

[jklovanc]

Thanks for this. "Good faith belief" can cover a multitude of sins.

That covers possible misinterpretation of the law. The courts are there to make the fine decisions. The perjury comes in making a claim of copyright when no copyright exists.

Nevertheless, it can be subject to a legal takedown. What a messed-up system.

That is only the first step. The site owner then can make a counter claim and the information goes back up. The copyright holder can then file suit in court and the information comes down again. Do you have a better idea of how to deal with infringing material posted on the web? Sorry but the court system is much too slow to do it on it's own. Waiting a couple of years to get infringing material taken down is much too long. I agree that it is being misused by some people but until a better solution is found it is the best available.

Re:LMGTFY

[el jocko del oeste]

Well, vimeo has it wrong. Here is the actual text of the applicable part of the law:

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The possible perjury only applies to the statement that the person sending the notice is authorized to act on behalf of the copyright owner. It doesn't apply to any other part of the complaint.

Re:LMGTFY

[jklovanc]

Posting a quote without a reference is questionable at best.

Second, a statement that the person sending the notice is authorized to act on behalf of the copyright owner is the most important part. Most bogus take down notices are for copyrights not owned or authorized to be represented by the complaining party or do not exist at all (as in the case of a name). Part of the take down notice is "under penalty of perjury" and part of it isn't. The part of it that is (ownership/representation) has a basis in verifiable fact. The part of it that isn't is based on "good faith belief" which is almost impossible to disprove.

Re:LMGTFY

[whoever57]

5. A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Except that Vimeo has got it wrong. The law does not say that. Instead it says:

ââ(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

So the perjury part only applies to the claim to act on behalf of someone else and not to the rest of the notice.

Re:LMGTFY

[gnasher719]

Thanks for this. "Good faith belief" can cover a multitude of sins. The use of copyrighted work does not necessarily have to be authorized by the copyright owner, for instance in the case of "fair use".

The law says what it says. Now if we ignore the fact that "fair use" will be a very rare situation, the law says the copyright holder can ask for the work to be taken down if you are not authorised, and the copyright holder is not required to investigate at this point whether you did something that doesn't require authorisation. "Fair use" = not authorised. "Fair use" can only be used as a defence in court when you are sued for copyright infringement.

Re:LMGTFY

[Anonymous Coward]

The part that's under penalty of perjury is the representation that you are the copyright holder or an authorized agent of the copyright holder for a given copyrighted work. The you're infringing on my copyright part has no such requirement.

Basically, in "I own A and your site, B, infringes on A," only the bolded part is under penalty of perjury.

Re:LMGTFY

[taustin]

Can you name a single case in which someone has been prosecuted, ever, for a bogus takedown notice?

Re:LMGTFY

[sir-gold]

That is only the first step. The site owner then can make a counter claim and the information goes back up.

What really happens is that the site owner makes a counterclaim, the hosting company goes to the DMCA complainer and asks "are you sure this is your copyright?", the complainer autoreplies with a "yes", and the hosting company respond back to the site owner "sorry, we verified the complaint, your content stays down unless you sue in court"

The only time that content goes back up is when either the DMCA complainer says "oops, we made a mistake", or the hosting company actually does some investigating of it's own (which is rare)

Re:LMGTFY

[jklovanc]

the hosting company actually does some investigating of it's own (which is rare)

What is your expertise on this? That is so far from the DMCA procedure as to be laughable. The whole reason for DMCA is to take responsability out of the hands of the hosting company. The hosting company never does an investigation. All they do is respond to complaints and counter complaints. If the hosting company opened an investigation they are taking responsibility for finding the voracity of the claims. That would open them up to litigation and any competent lawyer for the hosting company would avoid that like the plague. Finding the voracity of claims is the job of the courts and not the hosting companies.

What may confuse you is that the initial complainant has a number of days in which to file a law suit to keep the information down. Action on a counter claim is not immediate. If no lawsuit is file the data goes back up.

Re:LMGTFY

[jklovanc]

Here is one that is ongoing now.

Re:LMGTFY

[taustin]

I see no criminal charges mentioned. There's an allegation of perjury in a civil case, but no criminal charges.

Re:LMGTFY

[sir-gold]

It's not the greatest example, but here is YouTube's policy on counter-notices (to get content put back up)
https://support.google.com/you...

It basically says, if the DMCA takedown is filed on behalf of one of the major media companies, Google is contractually required to deny all counter-claims. If you want your content re-instated, you have to sue whoever made the DMCA complaint.

Re:LMGTFY

[jklovanc]

if the DMCA takedown is filed on behalf of one of the major media companies

That is a rather broad interpretation of what is actually said.

In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube.

Your interpretation assumes that YouTube has contracts with all major media companies and that all contracts have this special handling clause. Where is your evidence of those assumptions?

This process is also outside of the DMCA process and does open YouTube up to litigation. This is also completely different than your original scenario of checking with the original complainant. There is nothing the the YouTube policy about investigation. The policy does not even mention DMCA.

Re:LMGTFY

[Binestar]

I am sorry I'm responding late to this, but your list is incorrect with some of the placement of things in the requirements.

Here is the Law:
http://www.gpo.gov/fdsys/pkg/P...

The relevant portion:

(3) ELEMENTS OF NOTIFICATION
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Notice the wording of section VI: A Statement that the information in the notification is accurate, and UNDER PENALTY OF PERJURY, THAT THE COMPLAINING PARTY IS AUTHORIZED TO ACT...

The only part of any of that in a DMCA takedown is a statement under penalty of perjury that you are actually authorized to send DMCA by the owner of the material in question. There is no perjury on any other portion of it, including the good faith, or accuracy notification.

This law was written specifically this way to protect any agent of copyright holders from mistakes and/or malice.

Anywhere in Antigua or Barbados

[oneiros27]

The WTO (World Trade Organization) gave them an exemption from complying with US copyright laws, due to a 10+ year dispute over online gambling:

http://www.wto.org/english/tra...

At the DSB meeting on 28 January 2013, Antigua and Barbuda requested the DSB to authorize the suspension of concessions and obligations to the United States in respect of intellectual property rights. Pursuant to the request by Antigua and Barbuda under Article 22.7 of the DSU, the DSB agreed to grant authorization to suspend the application to the United States of concessions or other obligations consistent with the Decision by the Arbitrator.

Re:Anywhere in Antigua or Barbados

[HBI]

Barbuda is not Barbados.

Nearlyfreespeech?

[Anonymous Coward]

I have used nearlyfreespeech for a number of years (5+) and have always been happy with them. None of my sites are remotely controversial, but I initially went with them because of their pro-free speech stance and have stuck with them because they have been a good host. Here's their DMCA FAQ:

http://faq.nearlyfreespeech.net/section/nonmember/dmcaresponse

Now, their pricing structure may or may not work well for you depending on the type of sites you're hosting, but if you want a US based host who will do the right thing by you I think you should check them out.

"Yeah... right"... Re:John Smith?

[steppin_razor_LA]

Pretty sure these people haven't spent much time in the courts....

I was sued for defamation by a company over content that someone else published on their site. I was included in the lawsuit because I provided the owner/operator/content-creator/everything of the other site a web analytics tool I created (before the days of free Google Analytics). This was enough to confuse the courts and put me in the position where best case scenario, I spend $40K+ and I "win" and worst case scenario, I spend $40K and lose the case and face a ridiculous judgment.

Unless you are an unemployed lawyer with no assets and plenty of free time, the legal system is a big pile of lose-lose.

Re:"Yeah... right"... Re:John Smith?

[Anonymous Coward]

Okay, I just want to clear this up for all the uninitiated that are taking this for face value. You wonder why you see these above comments on sites like slashdot and reddit, is because these are the people who have no idea and are learning the ropes of what it takes to run a business. In steppin_razor_LA's comment, he's complaining about spending $40k... but why should he have to spend $40k out of his pocket to defend himself if he knows he's a sure winner? Oh because he has to hire a lawyer. Well let's stop there for a minute.. why does he have to hire a lawyer?

You see folks, what razor_LA and other business newbies don't realize is that you are liable for every. single. one. of. your. actions. Give someone a bad review, you're liable. Host someone's website, you're liable. Now what exists in the world to protect you from these many liabilities? That's right, insurance. razor_LA did not think of (or maybe opted out of, for cost reasons) business liability insurance. The first thing on the checklist of things to do before conducting business for all new corporations. Or maybe razor_LA did not incorporate a company and he's exposed his personal liability. But regardless, insurance covers you from sham lawsuits like this. The insurance company will go toe-to-toe with the plaintiff for you or they will settle out of court for you. NOT costing you $40k, but maybe (worst case) $4k over the course of a year.

I have $2m liability protection which protects me from exactly what razor_LA describes above. Additionally, that same $2m liability policy protects me from what this entire article's post is asking about. I get a DMCA notice? I forward it onto my lawyer and open a case with my insurance company. Maybe the real answer to this thread is to have proper processes and controls in place. For me, this costs ~$70/mo. A small price to pay for peace of mind.

Re:"Yeah... right"... Re:John Smith?

[Anonymous Coward]

Is this sort of insurance related to the type of business you have?

Why any *tool maker* (which is what providing web analytics would be) should be *in any way* liable for being sued because of the content of a website using the tool is beyond me. If that's what the law allows or what confused judges seem to think is valid, then there is something seriously FUBAR in the system.

This is like suing Mastercraft or Stanley because someone happened to use a wrench in the commission of some sort of offense. It's ridiculous.

The legal system should never force you to defend yourself from the patently ridiculous at your own expense. Period.

Re:"Yeah... right"... Re:John Smith?

[lgw]

It doesn't matter - that's why you pay for insurance. It's crazy nonsense - that's why you pay for insurance. It's outright harmful BS. That's why, well, you get it. I have $1 M in personal liability protection, just in case someone break into my house, injures themselves in the process, and sues me. Silly? Happens all the damn time. But that insurance costs me next to nothing because the insurance companies are skilled at fighting nonsense suits efficiently.

If I ever publish any software under my own name, I'll add the business insurance. Not as cheap, but as long as you're not in the kind of business where customers enter your property, it's still nothing as far as business expenses go. (OTOH, I can't imagine what the guys who run martial arts studios for kids pay, eesh.)

Re:"Yeah... right"... Re:John Smith?

[HiThere]

And you think this is right or just? That's truly amazing.

I will admit that you probably are describing the situation accurately, but to claim that it is just and proper it... well, frankly difficult to believe.

Re:"Yeah... right"... Re:John Smith?

[Noah Haders]

In US, anyone can sue anyone. with a reason or without a reason. as a businessperson you need to be savvy about this. if you want to stay in business then you need to be prepared for this, either by having a lot of money on hand for lawyers or buying liability insurance in case something like this happens. it's not a big deal.

Re:"Yeah... right"... Re:John Smith?

[Anonymous Coward]

Yes, good goy. Keep paying our protection racket fees.

Re:"Yeah... right"... Re:John Smith?

[lgw]

"Right or just" has little to do with running a business in any country. There are a vast host of things that you are forced to do that are not right or just. That's business. The test is not "right or just" (unless it's a legitimate religious issue or somesuch), the test is "unduly burdensome". If you can cheaply deal with the requirement, add it to the cost of doing business and move one.

Re:"Yeah... right"... Re:John Smith?

[Anonymous Coward]

And you think this is right or just? That's truly amazing.

I will admit that you probably are describing the situation accurately, but to claim that it is just and proper it... well, frankly difficult to believe.

What's the alternative? How do you stop people filing crazy-ass lawsuits, without also stopping people from filing legitimate ones?

Re:"Yeah... right"... Re:John Smith?

[HiThere]

One way is to make it easy and cheap to get rediculous suits dismissed at a preliminary hearing. Another is to penalize lawyers that file rediculous suits. (You need to do both. Many suits are not filed by lawyers.)

A good step would be to have various levels of hearing, with cheap ones at the bottom, that handle cases, such that simple obvious cases are dealt with quickly and cheaply, and cases that aren't simple and obvious enough are passed up to a higher level quickly, cheaply, and automatically. Naturally the higher you need to go, the more expensive it will be, but if you are obviously not-at-fault you should get off quickly and cheaply. (Sort of like having a "small claims court" for a preliminary screening.)
N.B.: I'm not talking about an appeals process. I'm talking triage.

Re:"Yeah... right"... Re:John Smith?

[sjames]

The very first level shouldn't even involve the proposed defendant. A judge should have to first look over the suit and see if it is even winnable. A surprising number of lawsuits allege the impossible or allege something that isn't actually a tort. For example, the guy who claimed that he was God and David Copperfield was usurping his divine powers in his show.

DMCA process?

[satch89450]

I used to run the abuse desk at a web hosting company before I moved on to automation control. Our company developed a procedure -- and published it -- to handle takedown notices. First, the notice has to be sent to the contact on record with the copyright office, that's part of the law. That meant it came directly to my desk. Further, the person submitting the notice had to provide some proof of copyright. Finally, the notice author has to demonstrate that the infringement didn't fall under fair use, or some of the other exceptions.

I then investigated the claim, and if I felt there was reasonable cause for the claim I would take down the site and notify the allegedly infringing customer of the notice and our analysis. The customer could then deal with the copyright owner and then the two parties would let us know how it's resolved. Or the customer could remove the infringing material (they still had access to the data even when the site was shut off), let me know, then if I was satisfied that the infringement was removed I'd turn the site back on, and let the complaining party know what had been done.

There was the case of a person whose site sold knock-off watches. The original manufacturer took exception to the pictures on the site, claiming trademark infringement (which was pretty obvious). The customer took the pictures off. Case solved.

Then there was the customer who posted MP3s of music. That was a no-brainer. We terminated him for violation of the acceptable use policy.

There were some trolls, too. One customer had material under copyright, but the customer's use of the material fell under fair use. The troll could not demonstrate how the infringement went beyond fair use. He threatened to sue. Our lawyers took that threat and ran with it -- replied with a threat to counter-sue.

So different companies have DMCA policies and procedures. It helps to look what they have in place.

Re:DMCA process?

[Anonymous Coward]

I used to run the abuse desk at a web hosting company before I moved on to automation control. Our company developed a procedure -- and published it -- to handle takedown notices. First, the notice has to be sent to the contact on record with the copyright office, that's part of the law. That meant it came directly to my desk. Further, the person submitting the notice had to provide some proof of copyright. Finally, the notice author has to demonstrate that the infringement didn't fall under fair use, or some of the other exceptions.

You were treading a fine line, there, and asking to lose your indemnity from liability if you actually refused a request on either of the last two of these bases. What would you accept as proof of copyright? I know I would struggle to prove to you in an email that I owned the copyright on most of my work. It can be very difficult to prove remotely, but turning up in court with original materials that were used in the production of a work can be pretty persuasive. And it explicitly is not up to the requester to determine whether the use is subject to fair use or not; that is a complex matter that can only really be determined by a court in many cases. The law states that they only have to *assert* that they own the work and that the use is unauthorized, not that they have to prove either of these to you. If you argued (say) fair use, and turned out to be wrong, you could become liable for your customer's infringement.

Nissan computer, is that you?

[netsavior]

Uzi Nissan, of Nissan computer fame has been paying the price for years for daring to be born with a name that was later copyrighted.

For the record, they use a hosting provider called SourceDNS, or so the internets claim... (though I cannot find such a provider). If Nissan.com computer is still up, your theotherjohnsmith.totallynotmelgibson.disneyisthenameofadifferentcompany.biz.info is totally safe

Re:Nissan computer, is that you?

[el jocko del oeste]

That would be a trademark claim, not copyright.

(I quibble, therefore I am.)

Re:Nissan computer, is that you?

[gnasher719]

Uzi Nissan, of Nissan computer [nissan.com] fame has been paying the price for years for daring to be born with a name that was later copyrighted.

That case must be about the most stupid use of lawyers that I've heard of. If you follow the link, you will see that neither Uzi Nissan nor the Nissan car company can make proper use of the www.nissan.com domain. I'd bet that Nissan's lawyers very proudly reported that they won a court case - which is totally pointless, because their goal should have been to get the use of the domain name.

Had Nissan not sent lawyers but someone with intelligence, then they would be able to use the name, and Uzi Nissan would have a brand new Nissan car parked in front of his computer shop every year. Which would have been better all around for everyone involved.

Re:Nissan computer, is that you?

[Anonymous Coward]

SourceDNS is LiquidWeb.

I work there.

Also, it takes but a few seconds to run a dig/host command on the domain, then whois the IP address and see it's us.

Over-reacting ISPs

[MobyDisk]

Most seem to over-react and require an official counter-response

That's because the law requires them to do this. They must either take down the content, or you must provide an official counter-response. There is no 3rd-option of saying "This request is bogus, ignore it" even if it actually is bogus.

Re:Over-reacting ISPs

[david_thornley]

Nope; this is the "safe harbor" provision. If the hosting site follows DMCA procedure, they have no legal liability. They can deviate, such as throwing away a DMCA notice, but at that point they assume some legal liability. They can judge that a copyright suit would clearly fail, but there's the risk that (a) the owner of the copyright referenced in the notice will sue anyway, costing them some money, and (b) a court finds that there is infringement. There's also the cost of actually looking at DMCA requests and making these decisions.

A free hosting site is unlikely to want to assume legal liability on your behalf, and the easiest thing is permanent takedown on any DMCA notice. The penalty for not allowing the counterclaim and repost is that they're defaulting on any obligation to you. If it's a free site, they have no binding obligation. To have one, there would have to be a contract, and a contract must have some sort of consideration (very often, money).

So, if you want a hosting site that does apply intelligence to DMCA requests, you can expect to pay money.

Note: I am not a lawyer, but Slashdot protocol does mandate taking legal advice from pseudonymous yahoos who don't know what they're talking about. If you wish to be sensible, please (a) turn in your Slashdot account, and (b) consult an actual real live lawyer.

Host your own website

[TechyImmigrant]

Run your websites from your own machines. Don't depend on others.

John Smith?

[Jmstuckman]

I thought that perjury was a criminal offense, not a civil one, meaning that one cannot "take them to court" -- you can only report it to the FBI and see if the US Attorney will choose to prosecute. Am I missing something here?

Not just the web-host

[phorm]

Better make sure your DNS service provider, and domain registrar are similar in "safe" places then...

Here's a pretty awesome datacenter DMCA response

[Anonymous Coward]

Login, Inc. (http://www.login.com) in Tucson AZ has a carrier-neutral datacenter.
Their DMCA policy linked from page above is at http://www.login.com/dmca.php.
Looks like they actually make sure people submit valid requests, and then
instead of taking things down, they forward it to the admin of the site.

That's pretty awesome, I think.

MP

It reads:
[stuff removed]
Login complies with 17 USC 107. If your request is in violation of that law, it is a FALSE DMCA COMPLAINT. You are responsible for ensuring your request is not in violation of that law. Requests which are FALSE DMCA COMPLAINTS as per 17 USC 107 or 17 USC 512 will be billed to YOU at $350/hr. Your sending us a DMCA complaint constitutes your acceptance of the law of the land, as well as our willingness to pursue it... but if we have to waste our time explaining to you why your complaint is invalid you agree to pay us for our time.

Upon receipt of a valid DMCA takedown request, Login will forward that on to the system administrator(s) or owner(s) of the system allegedly containing the content violating the copyright. Login does not own these systems. Login complies with all of the laws of the land including 18 USC 2702. Login will not volunteer private information absent a valid court order.

How much bandwidth do you need?

[FuzzNugget]

Though at a higher cost and depending on your location, you may able to get sufficient coercivity to simply facilitate your own hosting.

Setting up your own Linux-based web server is quite easy for the technically inclined.

Then you are free to respond to bullshit DMCA requests with, "are you prepared to commit perjury by filling a false and dubious DMCA claim?"

Trademarks != Copyrights

[Anonymous Coward]

The DMCA is not related in any way to trademark resolution processes.

Host it yourself

[WaffleMonster]

Host the sites yourself. CPUs and bandwidth has never been cheaper.

Re:Host it yourself

[Anonymous Coward]

Yeah, and building your own data center is so much cheaper than paying someone to use theirs.

I assume you must have meant to colocate a server in a data center or rent a server from one, but then in that case, they own the IP addresses (unless you have really deep pockets) and will be the ones getting the DMCA takedown in all likelyhood because the people sending those know that the data center can unplug you.

I work at a data center.

Re:Host it yourself

[WaffleMonster]

Yeah, and building your own data center is so much cheaper than paying someone to use theirs.

You don't need a "data center" to host long tail of most websites.

I assume you must have meant to colocate a server in a data center or rent a server from one

You assume incorrectly.

and will be the ones getting the DMCA takedown in all likelyhood because the people sending those know that the data center can unplug you.

No datacenter no problem.

I work at a data center.

Hence the hammer mentality.

They ignore DMCA

[Anonymous Coward]

I have been using a company called EDIS.

They ignore DMCA. edit(dot)at should help you out.

Go elsewhere

[rainer_d]

Host it e.g. in Switzerland.
I work at a Swiss hosting company - few corporate entities from the US go as far as getting a court-order from a Swiss judge (which we require before we do anything).
We get tons of bogus "Hi, I work for .... , we represent this-and-that large company and so-and-so infringes on our client's copyright etc." emails.
We all tell them to come back when they've got a court-order signed by a Swiss judge. Registered mail.
But of course, unless you also live in Switzerland, the lawyers will eventually just target you directly.
It helps to filter out all the "noise", though - I admit.

Additionally, you've got to choose a hosting-provider that has no US ties - else they just go via the US HQ and then you're back at square one...

Have you tried Dreamhost?

[Advocatus Diaboli]

I have found dreamhost.com to be particularly level-headed when dealing with DMCA-based bullshit. And yes, my opinion is based on a series of experiences with DMCA-trolls.

Fair use and other noninfringing uses

[tepples]

It's one thing to fight for what is legitimately your copyrighted content. But quite another when you're hosting other people's copyrighted material, to whom your customer may not have a distribution agreement with.

It's harder in cases where your customer's work contains a portion of someone else's work, and your customer and the copyright owner disagree on whether this use is a fair use.

Cost of localization and localisation

[tepples]

It's getting to the point that in some circumstances, avoiding selling anything to USA customers saves tonnes of money and time with expensive lawyers... at the cost of 330 Million potential customers... but hey... there's over a 1 billion other internet users out there and growing.

Among sufficiently affluent English-speaking countries, the United States has a supermajority of potential customers. Into how many languages will you need to translate your product or service to reach the next 330 million potential customers?

Africans, South East Asians and Russians.

[briancox2]

Find yourself a good Seedbox out of the country.

Derp

[Anonymous Coward]

Fist yourself.

Indeed...

[Anonymous Coward]

...Clinton demonstrated that the only way for moderate Republican to be elected to the Whitehouse is as a Democrat.

GKG.NET

[Anonymous Coward]

I used to work for GKG.NET and I wrote the DMCA policy that they use (I doubt it has changed in the last year). When we received a DMCA notice, it had to contain all sections of the notice in full.

  In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

        The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
        The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
        Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
        A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
        A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

We would get notices that requested that we remove a website (or it's content) and one of the above was missing. So we wouldn't act, instead we replied back to the complainant, and inform them that they must adhere to the law and submit the full information. We'd also not tell them specifically what they were missing (it's their job to do their homework, not ours)...

Then we would contact the owner of the site (domain or website) and let them know that we had received an incomplete DMCA takedown notice. That would give them time to correct the issue before the complainant came back with corrections.

I hate the way the law is written, it does not protect the ISP/Registrar/Hosting provider and a while filing a fake notice is not allowed, it happens all the time and no one enforces that.

You hear this a lot...

[Anonymous Coward]

This is a reasonable question from a person who doesn't know much about how the DMCA is written. Here are a couple of issues to keep in mind:

i) What does it even mean to "handle these complaints in a reasonable manner, and filter out the ones that are obviously bogus"? What is "reasonable"? Where do you draw the line at identifying "obviously bogus"? A person's name could certainly qualify as IP protected under the DMCA, although the fact pattern would have to fit a narrow set of conditions, it's far from impossible. It's not the role of an ISP to make such calls, nor would we want one to, IMO. I'm not saying that it's impossible to identify content that could not possibly be within the DMCA -- I'm saying that it's not up to an ISP to determine on which side of the fuzzy line borderline cases should fall. And that's why the burden of identifying a nonfrivolous and nonabusive takedown should not fall on the carrier.

ii) The DMCA has a well-defined protocol for asserting, responding to, and overcoming a takedown request. If the alleged IP owner follows the procedure, the ISP must take down the alleged infringing content, or become liable as a contributory infringer. The DMCA also requires the ISP to notify the poster of that content. If the poster responds with a plausible explanation (again, conforming with the formal requirements of the DMCA) of why the content is not infringing, the ISP must then put the content back online and allow the two parties to pursue further legal interaction.

iii) Bottom line is that, surrendering to an ISP responsibility for determining if content is truly infringing opens an enormous can of worms, shifts burdens to the wrong party, and places the ISP in an unworkable position. If a party alleges a cause of action against a 2d party, in our legal system, it's generally the 2d party's responsibility to defend itself. That means, of course, that you could be nibbled to death by ducks if some content holder decides to abuse the DMCA by repeatedly asserting frivolous claims under the DMCA. But that's true of almost any law (think about patent trolls).

Having said all that, if you can find an ISP that generally ignores all but the most obvious DMCA takedowns, god bless ya. It's a pretty stupid fucking ISP, IMO, that ignores the safe harbor written into the DMCA expressly for its benefit by potentially siding with true infringers. But the result is still in your favor.

One outside the US

[YoungManKlaus]

simple as that ... because why the heck should anyone in country X care about a DMCA request?