The DMCA has been around for 10 years now. It remains as controversial as it has ever been. The most controversial aspects of the Act, the anti-circumvention provisions, don’t generally apply to hosts. The “notice and takedown” aspects of the Act do.
In spades.The DMCA, for all its flaws,has made life a bit easier for hosts. Prior to the DMCA, hosts were often faced with lawsuits arguing that they were liable as third party infringers for the content of their customers. With the DMCA, as long as you comply with the Act, you fall within a “Safe Harbor,” insulating you from liability.
The predictability of the DMCA has not come without costs. Primary in my mind is the flawed process of “shoot first – ask questions later.” Each year I see at least 10 instances where a copyright owner simply ignores basic copyright law when sending a notice and takedown letter and suffers no penalty. The host’s customer, however, has likely had their site shut down and sustained at least a week of downtime.I have also encountered my fair share of notice and takedown complaints that were harassment pure and simple.
A business sends a notice and takedown letter and has his competitor’s site shut down. Even if the site is down for a week, for an Internet business, that can be the difference between life and death.Copyright owners argue that unfairly targeted entites can sue complainants for false notice and takedown letters.
While this argument works well in theory, in practice, a lawsuit typically runs about $40,000. That’s money most businesses don’t have to spend. In addition, Federal courts remain split on the issue of whether the phrase “under penalty of perjury” applies only to the authorization to make the claim of infringement, or to the truth of the claim of infringement itself. I am sure I am not the only person who has had to parse murky sentence structure that was specifically drafted to make sure that the signatory of the letter was *not* stating that the claim of infringement was in fact truthful.The DMCA, however, has been a good thing for hosts. Whether it is good for society, is a question for the pundits.
About David Snead
David Snead is a lawyer whose practice is focused on internet infrastructure providers. In his eleven years in this practice, he has represented clients including multinationals, middle tier hosting companies, and two guys, a server, a T-1 and a huge MasterCard balance.
A long-time WHIR contributor, David Snead is the Web hosting business's best-known legal expert. Through his WHIR blog, he offers a credible legal perspective on both specific actions in the Web hosting business and general developments in legislation.
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