DMCA Notices

Posted By: Tony Baird

Last Updated: Wednesday November 11, 2009

DMCA notices as well as other legal documents has been something that has annoyed me for some time.  We get them all the time due to our size and we’re expected to become the judge and jury involving content and other situations.  In some cases they’ll be sent to us and we’ll work with the party on resolving it.  Other times it’s sent to our provider Softlayer and we’ll be in an even tougher position.  I see the DMCA especially being abused a heck of a lot to take down competitor web sites as well as just be a general nuisance.  For example here are some recent examples:

Forum Posts

We had received a DMCA letter demanding that forum posts from web site be taken down.  Some user was posting on a forum and they decided they no longer wanted to be a part of it and claimed they owned a copyright to all their posted content.  No matter the choice we made on this matter we were in a tough position.  We have no idea if legally the user owns the content in the posts or if the terms of the forum even would stand up in court as far as the forum owning the content.

Similar Websites

We get DMCA’s about sites copying design aspects from another web site on the internet.  In some cases it’s pretty cut and dry and an obvious use of stolen HTML and things of that nature.  Some cases though it could be as simple as they used the same colors or the designs had similar inspirations.  In these cases under the DMCA essentially the web site has to remove their web site design.  Even if it was clearly not intentional in anyway and the code or graphics were clearly not stolen.  The other option is the the site that was referenced in the DMCA notice sends a counter notification.

Similar Content Wording

We’ve also had cases where someone files a DMCA over someone using the same sort of style of writing or quoting the same book.  Once again another example of us having to make a decision that no matter which way there are going to be consequences.

We’re expected to rule on these situations which we have no business in doing.  More and more users are realizing they can pretty much DMCA anything and someone down the chain will say it looks real enough it’s valid someone must comply.  So you have competitor web sites making DMCA’s with no actual intention of taking the matter to court if necessary.  They simply realize the provider will forward it to the web host who will send it to the customer and the site will most likely be shut down.

This whole system has resulted in us having to shut down web sites because a competitor decided to file a DMCA.  Our provider gets a DMCA from their provider who then sends it to us and we have 24 hours to comply before the IP hosting the site is null routed.  What an awful situation for us to be in so we lose the customer over most likely a false notice.  You also have misinformed notices where someone is using a software and their piracy division sends us a DMCA.  We tell the user to provide proof of a license and they do and we still have to shut them down because the party who sent the DMCA did not retract it even though it was a mistake.

So in summary I really think the DMCA is great in theory but in practice it’s a mess.  The web host cannot be expected to be the judge and jury on any legal situation but we are expected to in order to avoid being liable.  So it results in us losing customers and our customers losing money or in some cases their business entirely.  Malicious users have learned how to cheat this DMCA system and now have made what seemed like a good system all but a joke.  The DMCA system had not been adjusted to deal with this growing problem so if we are to avoid us being liable we have to continue to fold to the false complaints and incorrect ones.

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