Part 1: DreamHost, the DMCA, and You

Eureka! You’ve done it! You finally produced a site with great design and even greater content, and you’re ready for “Internet Fame” to wrap her fickle arms lovingly around you! All is well with the world…and then it happens.

You awake one morning to find something missing from your site or, even worse, your site missing. As the panic sets in and you scramble to identify the problem and shoot off a message to DreamHost tech support, you see an email in your inbox with a subject like, “DMCA Take-down notice re. ‘your site’ – URGENT.”Then your panic changes to rage, or fear. This is a disaster! What, exactly, has happened?

This article will attempt to explain this to you, give you some understanding of why this has happened, what was done to your site (and by whom) and how to deal with it.

What Has Happened?

DreamHost has received a formal complaint under the DMCA alleging something on your site is infringing a copyright and has taken action to protect themselves from liability for any alleged infringement.

First, what is this DMCA thing? The DMCA is an acronym for the “Digital Millennium Copyright Act,“ which is a U.S. law that addresses copyright issues and has important ramifications for web hosts and other Internet Service Providers (ISPs). While the law has many facets, what I’m discussing here are the parts of the law limiting liability of the providers of on-line services for copyright infringement by their users, and how DreamHost avails itself of these protections with regard to our customers’ content.

This law is important for the continued survival of on-line service providers like DreamHost, because without its protections many providers could be sued into oblivion over alleged violations of copyright law involving content their customers posted on their service.

Generally stated, the law allows for an on-line service provider to avoid liability for copyright infringement committed by its customers if they respond, in a prescribed manner, when properly notified that a copyright holder is alleging infringement has taken place on their network. The law allows these providers a “safe harbor” from liability if they expeditiously take alleged infringing content off-line, and restrict access to it, upon being properly notified of the alleged infringement. So, how does this work in “real life” at DreamHost?

Each day we receive notices of copyright infringement regarding sites we host. We inspect each of these very carefully. Many of the notices (typically more than half of those we receive) are defective, since the contents of the notice don’t meet the requirements of the law. We reject these outright, replying to the complaining copyright holder, or their agent, that their notice is not acceptable under the law.

The important message here for DreamHost customers is that someone writing to us, saying they’re upset that our customer “copied” their site design, image, or some text, and they want it taken down IMMEDIATELY does not result in us saying, “OK!” and taking our customers’ content offline. For us to act on the notice, it must be proper and complete as defined in the law. Not all “notices” meet this standard.

DMCAWhat Was Done To Your Site, and By Whom?

DMCA complaints are not evaluated by the Technical Support Team at DreamHost, but rather by the Abuse Team, whose members are trained to understand nuances of this law. Those doing these evaluations make sure that the complaint is properly submitted; they have various ways of taking alleged infringing content offline. One of the goals is to only remove what is absolutely necessary to comply with the notice of infringement.

Assuming a notice or complaint is proper and complete under the law, we then take the alleged infringing content offline in the most expeditious manner possible. The law’s requirement that we act “expeditiously” is problematic when it comes to notifying a customer of the alleged infringement before taking the alleged infringing content offline.The law is unclear as to what constitutes an “expeditious” removal. To maintain our safe harbor from liability, we don’t contact the customer and request *they* take the alleged infringing content offline. This would put us at unacceptable risk if the customer  doesn’t see the email quickly, or delays taking the content offline (or simply refuses).

How we take the alleged infringing content offline varies depending upon the nature of the infringement. In cases where a single static page (or very small number of  static pages) of content, or a single (or very small number of) images are alleged to infringe, we simply move that content offline by moving the files involved outside the web accessible directory structure of the site, and renaming them to indicate they’ve been disabled. This preserves the files if the customer files a proper counter-notice, and the complaining copyright holder fails to file suit against the customer for infringement within the specified time, and the customer wants to put the alleged infringing content back online at their own risk (more on this soon).

In instances where the alleged infringing content is contained on pages rendered by web applications, such as WordPress, forums, and other script-driven software, the method described above won’t work, and the alleged infringing content is not contained in files that can be moved. In these cases, we take the site offline until the owner of the site can remove the alleged infringing content. This is usually done by renaming the site directory, so the site is not reachable on the web but the site owner can use FTP, SSH, or a database management tool to remove the alleged infringing content, and put the site (minus the alleged infringing content) back online after changing the directory name back to its original name. This method is also used when the alleged infringement on the site is so massive and extensive that we cannot expeditiously remove it. My personal record was an instance where over 58,000 individual images were alleged to be infringing. We can’t realistically undertake that level of editing on our customer’ sites, so the entire site will be taken offline until the customer cleans out the alleged infringements.

We don’t attempt to ascertain if the allegations of infringement are legally correct, or who actually owns the content. We are not in the position to make such judgments, as these things are often only decided authoritatively by the courts.

For more on this topic, stay tuned for Part 2 coming soon.