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 shoot off a message to DreamHost tech support, you see an email in your inbox with a subject line like, “DMCA Take-Down Notice — URGENT.”
Then your panic changes to rage — or even fear. What is really going on?
The answer: 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.
This DMCA guide breaks down all that legal jargon — gavel not required — to help you deal with a DMCA take-down notice, copyright infringement complaints, and more.
What Is The DMCA?
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 online 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.
What Does the Law Allow?
Generally speaking, the law allows for an online 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 offline, and restrict access to it, upon being properly notified of the alleged infringement.
How Does This Work 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.
Here’s the important thing for DreamHost customers: just because someone writes to us and says they’re upset that someone copied their site design, image, or text, doesn’t immediately result in us taking the customer’s 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.
Read more about DreamHost’s take on copyright infringement here.
Who Reviews DMCA Notices?
DMCA complaints are not evaluated by the Technical Support Team at DreamHost, but rather by our Abuse Team, whose members are trained to understand the 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 (see How Do We Take Content Offline?). Their goal is to only remove what is absolutely necessary to comply with the notice of infringement.
What Does Expeditious Removal Mean?
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 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, delays taking the content offline, or simply refuses to comply.
How Does DreamHost Take Content Offline?
How we take the alleged infringing content offline varies depending upon the nature of the infringement.
When Content Is Limited to Static Pages or Image Files
In cases where a single static page or image are alleged to infringe, there are a few methods we use to take content offline. Sometimes we simply move the allegedly infringing files outside the web accessible directory structure of the site. Other times we rename the files to indicate they’ve been disabled. Sometimes we use a combination of these two methods; it all depends on the site’s structure.
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. Then the customer can put the content back online at their own risk.
When Content Is Contained on Pages Rendered by Web Applications
In instances where the alleged infringing content is contained on pages rendered by web applications, such as WordPress or other script-driven software, the method described above won’t work, since 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 back online after changing the directory 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.
Does DreamHost Make a Judgement About Content Ownership?
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.
Our actions are not meant to imply that we believe the complaining party, either; they’re just a defensive action to protect DreamHost from liability.
Upon taking the alleged infringing content offline, we immediately write the customer, informing them about the complaint we received and actions we took. That message contains detailed instructions for what the customer can do to address the issue if they think the notice of infringement is incorrect or inaccurate.
Legal pop quiz! Do you think code should be protected under the First Amendment?
How Should You Deal With a DCMA Take-Down Notice?
Carefully read the message we send you about our actions. Next, refrain from putting the alleged infringing content back online unless you submit a proper counter-notice and have waited for 14 days for the complaining party (who will be sent your counter-notice) to notify us, and you, that they are suing you for infringement.
If they don’t contact us within this time, and you’re willing to assume any risk that they will sue you after you putting the content back online, then you can put the content back online. If they do notify us (or you) that they have sued you, you cannot put the content back online.
Doing so (or doing so before the waiting period passes) is a violation of our Terms of Service and will result in the termination of your hosting account. Filing a counter-notice doesn’t release you from any liability if any actual infringement occurred, and you could be sued for copyright violations by the copyright holder whether or not you leave the content offline.
In cases where we only removed small pieces of content, you don’t need to do anything at all unless you intend to file a counter-notice, or wish to edit your site to cover any deleted content. In instances where your entire site was disabled to take the alleged infringing content offline, you’ll likely want to remove the alleged infringing content so you can put the rest of the site back up quickly.
If you have questions about the notice you receive, simply reply to it and the Abuse Team will respond with answers!
Doesn’t This Seem Unfair?
It’s rare for anything to be considered completely fair by all parties concerned, and the DMCA take-down process can seem to favor the complainant over the publisher (at least in the early stages of the complaint).
It’s true that if a complainant is willing to perjure themselves, then they can file a false notice of infringement. And if the notice is properly formatted and contains all elements required by law, the content will initially be taken down. There is recourse for the publisher, since they can file civil actions for damages in such cases, and this is designed to keep the complaining parties honest (though DMCA crooks do still exist).
Ultimately, the best defense against infringement complaints is to educate yourself about what constitutes plagiarism on the web. Review plagarismtoday.com and make sure you’re not making these 6 content ownership mistakes.
Want more info? We interviewed experts to answer 10 legal questions about online content.
What Are the Benefits of the DMCA?
Although the DMCA isn’t perfect, it is an integral part of internet life.
One huge advantage: the law makes it possible for DreamHost’s hosting plans — along with those of other web hosts and ISPs — to remain affordable! The costs of defending against copyright infringement suits for content published by customers would raise the cost of services for the entire internet community.
But we want to hear your thoughts. Has the DMCA helped protect your content? Or do you think the law is too cumbersome? Tell what you think in the comments below.