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Comment by thaumaturgy | Hacker News Reader

The DMCA does not require a service provider to take down an entire server without notice. This is a problem with ServerBeach, not with the DMCA. But, I guess that would get fewer page views.

(What a strange world I find myself in to be defending the DMCA so many years after being part of the opposition to it on Slashdot.)

ed: "farms" has posted a link downthread which explains more of what's going on. It's more complicated than the TechDirt article makes it sound; it's also still not primarily a DMCA issue, but a ServerBeach customer service issue.

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But if the 'unit of service' being provided is a full server, that may be the natural atom of enforcement... or even the only practical one.

Let's concern ourselves with the general case, setting aside the specifics of the WPMU/ServerBeach service arrangement.

A customer could be purchasing a full server, or perhaps just rack space, and the provider might not have (or reasonably want) finer-grained server access or traffic-blocking options.

Faced with a DMCA notice, and in the sort of knee-jerk cover-thyself mode of thinking that the DMCA encourages, such a service provider may have only one crude switch to throw.

Reckless/automated notifiers face few penalties for misdirected or overbroad notifications. For example, they can ignore a particular website's DMCA contact information, and just start firing away at more foundational services whose contact info can be auto-discovered, like the IP-block managers or even domain-name service providers.

Those are a problems arising from the DMCA's liability/incentive setup, not the service provider.

I'm completely with you on the reckless automated DMCA notice system. That does not seem to be the case here at all.

Yes, I didn't mean to imply that was the exact case here... rather another often-related problem.

This case is bad enough, in that even a relatively well-considered notice, and a default reaction, can crudely impair a lot of other legitimate publishing.

It's not clear to me, though, whether Pearson tried contacting the Edublogs administrators first, or just skipped to the ISP. (I'm also not sure if http://edublogs.org/abuse/ existed before the incident -- but even if not, DMCA practice should require an attempt to contact the narrowest service-providers first, and only move 'upstream' if that doesn't generate either action or a counternotification.)

It appears to be true, until you look at this graph: http://www.google.com/transparencyreport/removals/copyright/ The number of DMCA requests is exponentially rising. Many of them are bogus, too broad and request removal of the entire domain. There are no effective legal penalties for overly broad requests. If you operate a large hosting or web company, it is unfortunately becoming economically unfeasible to examine each request to narrow down its scope and/or to even determine its legitimacy, and the most cost-efficient route is to comply blindly. This is not to say that ServerBeach is a good hosting company: I hope it's a good lesson for them: turning off such a large customer without getting on the phone with them is setting a precedent that is suicidal for their business.

I htink a solution might be to have to pay a fee that is proportional to the scope of the dmca take down request?

Unfortunately the DMCA isn't written that way. You can't charge any fees.

Even after the event for DMCA notices that are clearly incorrect or bogus or malicious?

That's not a fee (which would disincentive filing DMCA notices in the first place), but rather a compensation for damages (which puts the burden of proof on the victim).

That might be also the end of DMCA. If anyone figured out that they can abuse the system, the hosting company may receive enough requests that it can go out of business and instead not comply until the sender take more serious legal action.

Was going to note the same thing. Pearson executed an appropriate request for taking down copyrighted material with all the rights for opposition that the DMCA enables.

The question, which the link-bait-y article didn't bother answering, is whether or not ServerBeach expressly outlined its response to DMCA takedowns beforehand. If not, they have more than a PR problem. If so, then not a very good idea to host a blog site (or any user-generated content site) with them ...

Also, at $75k/yr seems they're well beyond hosting and should be collocating their own hardware.

It's so not link-baity, it's trying to change stuff for the better... I tried emailing them before, they palmed me off and ignored me to such an extent that we didn't have a choice... either go public about it or shuffle off and change hosts at great cost and pains to ourselves.

they could at least have called us!

I agree, ServerBeach screwed the pooch on this. But, the link-baity part is in pointing this out as a problem with the DMCA, when the actual problem is ServerBeach.

You do have backups, I hope? You can just be up and running on a new provider within a day or so?

Many and numerous backups, but moving ~2m blogs (there's at least 750k splogs that live in dbases but dont show on our numbers) 'aint that easy!

Just out of interest, but when is the acceptable answer to this question "No"?

I wasn't asking so that I could judge him; I was asking so that I could better understand his situation.

Sorry, I wasn't meaning to imply anything.

In the past I would always have said "You must have backups, always, no exceptions". But I realised when reading your post that there must be some businesses that don't have backups. Some of those have made a rational sensible decision. And I'm trying to work out where the cut off is between explaining to a customer that their data has gone and buying a bunch of drives for yet another rack.

No worries. In my experience, most businesses don't have backups, or adequate ones, usually because it's not a high enough priority (either because of funds or time) up until disaster hits.

I've mostly gotten over giving people grief for not having backups when fate finally catches up with them, so that's why I was asking.

I don't understand your last sentence.

This is either a dedicated or co-located server. Either way, unless they have a fully managed hosting plan ServerBeach has no login to the server. Likely the only things in their power are to cut the power or stop routing the IP. Possibly they could use a more fine-grained firewall rule but ... they don't have to. They only have to control the service they are offering, which is probably just power and bandwidth. Furthermore, if they don't respond satisfactorily to the DMCA the complaint can go to THEIR upstream who has the same sort of choices to make.

We have about 15-20 self-managed servers.

They apparently have top of the line supprt staff. They also have access to a technology called "phones" - this technology works by picking up a handset, dialing a number, the other person picks up the phone and you explain that there is infringing material and will you please take it down and make me aware when this is done.

Sorry to hear of the dreadful service provided by ServerBeach!

That's true as far as it goes, but one can still argue that this situation shows a weakness of DMCA. Whenever the host is in doubt about how to respond to a takedown, the law encourages them to over-react.

No, one cannot. The law left the door wide open for service providers to work out the situation with customers, so long as they do it quickly (I believe the actual term in law is "expeditiously").

Blaming the law because the service provider isn't following it is absurd.

It is not absurd. More blame may go to the service provider. But the actual consequences in the real world matter.

The whole tone from the government is to encourage the rights of those making claims against those taking advantage of their rights to publish. It is not at all surprising to repeatedly hear of draconian actions taken on the basis of DCMA. Exempting the DCMA from criticism based on what is actually happening is not sensible.

DCMA, and the related pressure from the government on related matters, is of course likely to cause people to make decisions to essentially turn of the printing press (the server) when confronted with DCMA notices.

Granted, in this instance I would blame the host for a large portion of the problem.

I also find Pearson's actions ridicules. The consequences of their silly action were very bad. The host shouldn't have made the bad decision, but they wouldn't have been put in that spot without a silly action by Pearson. To me the host deserves most of the blame but DCMA (and all the hype around government's get tough policy for the copyright industry) and Pearson deserve blame also.

As far as I can tell, ServerBeach did follow the law. And 'farms' response elsewhere in this thread suggests WPMU manages their own servers, so there may not have been any way for ServerBeach to take down a single blog/post/subdomain.

I do not see why we cannot blame the law. The argument seems pretty trivial to make. If a company does not overreact they have a low chance of being hit with a very large penalty (loss of safe haven and lawsuit), whereas if they overreact they have a high chance of facing a small penalty (loss of some customers and some bad publicity). The logical decision for any business would be to take a high chance of a small penalty over a low chance of a high penalty, to maintain stability. So the law here is systematically encouraging businesses to overreact, which seems like a bad law to me.

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