What every web site and host needs to know about the DMCA

POSTED BY on Jun 13 under Hosting

Daniel over at DailyBlogTips is getting ripped off. Web sites are stealing his content and trying to pass it off as their own and worse, the clueless host involved (EliteHost.net, which I will not dignify with a link) doesn’t seem to realize that not only is the webmaster thief liable but the host is as well if they fail to respond appropriately to a valid DMCA takedown request.

The DMCA(pdf) has been vilified by a lot of frothing-at-the-mouth loons that run about screaming that it’s the death of internet “freedom” yadda yadda. If you pin one down on the topic it usually turns out that they haven’t even read it or if they claim they have they certainly don’t understand it. Yes, the DMCA is a big club that can be used by multi-billion dollar corporations to smack down the “little guy” but that club has a handle at both ends. If you’re a U.S. web publisher (blogger, conventional site etc) or a web host then you must make yourself familiar with the provisions of the DMCA and know how it affects you… and how you can use it.

Now of course, “I am not a lawyer” so insert the obligatory disclaimers here. That acknowledged I’m an admin at an ISP / Web host / Colo which means I have the dubious honor of being one of the people that has to deal with DMCA complaints.

Before sending a DMCA Takedown or responding to one, here’s what you need to know.

* If the content violating someone else’s IP (Intellectual Property) rights is on one of your servers, or physically located within a facility you own or control then you are a defacto participant in the IP theft and the DMCA can be applied to you. This can be a gray area real fast for a colo facility where the physical cage or rack the server is company property, but the actual server is not. Some colos think that this absolves them of liability, but whether it does or not is for a court and a judge to decide and that’s the problem for the colo: it is a matter for the judge to decide. If they fail to respond to a valid DMCA complaint then they can and will be added as a defendant in any resulting law suit and that means months of legal bills for the colo before that determination even gets made. This liability can be extended “upstream” to the bandwidth provider to the hosting facility — but then it gets really twitchy as to whether a judge will let it go that far up the chain and before listing the bandwidth provider as a defendant in your suit you’d better be ready and able to pay that bandwidth provider’s sharks should the judge decides you’re being a git.

* Anything you legally create is automatically copyrighted – you do not have to stamp it with a copyright logo or register it anywhere.

* Following on to the above, your email is copyrighted by you the original author. Many get confused by this and think that an email they receive is fair game to use as they see fit. It is not. The email is (in most cases) an original composition and by definition receives all the protections of copyright any other original work receives. Whether you wrote the email for monetary gain or not is irrelevant. You the recipient of an email must be aware of this — especially if you decide to post that email on your web site — because the moment you do you become liable under the DMCA yourself. As with all copyrighted works however an email is subject to Fair Use, which means that while you cannot post an email in its entirety without permission from the copyright owner, you are allowed to cite that email within your own works.

* Fair use is not actionable under the DMCA. “Fair Use” is an often misunderstood Copyright and Trademark protection. In a nutshell Fair Use allows you to cite a copyrighted work or use portions of a copyrighted work within your own works without liability to or license from the original copyright owner. The operative word here is portion Some examples would be a movie reviewer showing a clip from a film they are reviewing, a book reviewer citing a single page etc. Sometimes the use can be a bit nebulous because it can be difficult to determine how much is too much. Once again, that becomes a matter for a judge to determine. In a nutshell what you as a web host or author needs to know is that you need to keep your usage of a copyrighted work to the minimum required to make whatever point you’re making in your work. The less you can use to make your point, the safer you’ll be from liability.

* Facts can never be copyrighted. Regardless of what the fact is, a “fact” is a truth that simply exists. The Sun rises in the East. Your painting of that is protected, your statement of that is not. The most amusing DMCA complaint I ever worked fell in this category. A husband and wife divorced and the husband ended up owing a lot of back child-support. The wife posted a web page about it and detailed the amounts the “deadbeat dad” owed her. The husband then sent a DMCA takedown to us trying to claim that those dollar amounts were copyrighted. Suffice to say that particular claim rapidly made it around to the entire staff to chuckle over. If what you write is true, factual, and at the time you write it is unalterable – then it is not subject to copyright. This allows you to do things like post the dollar amount that a deadbeat dad owes, or the definition of a word verbatim from a dictionary. It even allows you to do things like copy the entire contents of a phone book if you want to (the names, addresses and phone numbers are facts)

* The arrangement and composition of facts is copyrighted. Continuing the example of the phone book, you can copy the raw facts from it with total impunity. If however you copy the page layout, the layout of the ads in the Yellow Pages etc – then you are violating the copyright of the original author – which brings us to originality.

* If it’s not original it’s not copyrighted. Originality can be difficult to determine but that’s what judges are for. Your email or blog post you write yourself, even if it cites other works, is copyrighted by you automatically. Your forwarding of someone else’s email is not — because you are not the original author.

* Valid takedowns only please. Read the rules in the DMCA to know what is and is not a valid takedown request. You cannot simply write that “Hey, so-n-so is breakin da law!”. You have to specifically cite the work in question and its location on the internet. You must digitally sign your complaint, and swear under penalty of perjury that you have the right to demand the takedown in the first place.

* Invalid takedowns that result in harm to a host or web site (by removal of content that wasn’t really subject to your DMCA claim) are actionable by the affected host or web site. In other words before you demand that a host take a page off of someone’s web site you had better be very sure that you are in the right. If that host takes action on your request and that request was invalid you will be in a world of hurt, because then the host can sue you for harming them and the owner of the web site can sue you as well.

I’ll add more to this as I think of it (Translation: Time to knock off posting and go to work), but if you are a web author or web host you must familiarize yourself with the DMCA. Several good web sites exist to help you figure it out and probably the best of them is over at ChillingEffects.org.

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