It’s getting bad out there. Over the last year many of Project DoD‘s new users have been refugees from hosting providers that caved to DMCA takedown notices. These people are not given the chance to respond with a counter notice — a provision of the DMCA that let’s one challenge the claim — and with increasing regularity they are not even being shown the original notice. From mom-and-pop hosts to the Goliath hosting shops something has changed. We’ve personally seen Network Solutions, BlueHost, and WordPress kick users without letting them even read the claims of their accuser. It seems the almighty Terms of Service clause that allows “us to kick anyone for any reason at any time” reigns supreme. But don’t disparage just the big guys, we’ve seen the same sort of reaction from mom-and-pop shops as well.
So why the shift in attitudes amongst these providers? We have an old theory dusted off and shined up for the twenty-first century (sensory): when profit is a consideration above human rights, society suffers a dehumanizing loss of liberties. Remember, governments may recognize the right to free speech as fundamental, but corporations have neither made that concession, nor suffer legal bindings to uphold it. But why does the DMCA put profit above human rights?
The DMCA puts liability for user content directly on the shoulders of hosting providers, regardless of whether or not that content is infringing. In order to be safe from this liability, hosting providers must take the appropriate steps to remove said content when notified of its existence. Since there is no judicial oversight of the original claim, and it would be an enormous burden to put that determination on the service provider, this statutory requirement of the DMCA is easily abused. But wait, someone thought of this when they crafted the DMCA right? Can’t the user file a counter notice?
Correct, someone did put their twentieth century thinking cap on to create provisions to help prevent this abuse. The user that controls the content can fight the claim if they file a counter notice (again with no judicial oversight). This counter notice subjects the service provider to further liability by requiring that the provider put the content back up within fifteen days of the original takedown date to further maintain their safe-harbor. What’s more — and this is the part that is very twentieth century — the DMCA requires the content stay down for at least ten days. Presumably, this provision is in the DMCA to allow the plaintiff — if we can even call them that yet — time to get a court order to keep the content down. In the twenty-first century where these simple complaints can be shotgunned at providers with alarming speed and no judicial oversight, this provision amounts to the best denial of service attack an abuser can mount against another Internet user’s website.
Add some increased liability, mix in a whole lot of extra work for the service provider, a dash of the DMCA, and society has lost that precious freedom of speech. There is plenty of finger pointing to go around, and if this sounds like we’re trumping up the charges to be sensationalist, or get you to switch to a not-for-profit provider, consider this: in the time it took me to write this article another user has come to us because their host WordPress took down their site for unknown ToS violations. The site is http://childtorture.wordpress.com/, and they were not told what specific ToS provision they violated. All that was said was:
On Sat, Aug 22, 2009 at 4:33 AM, [Someone at WordPress wrote]:
Your blog is as close as it gets to being permanently suspended.
If I am standing up for your rights to say what you wish within the law than I expect you to listen to what I request and then do it. It’s only fair.
Free speech is one thing but breaking our rules is entirely different.
Please remove from the entire blog ANY use of the words ‘attachment therapist’ against ANY person.
There are no exceptions to this.
Please do this today.
And if it is requested to change any part of the blog please do so. You have no idea of the continual complaints that are coming in and I expect you to help me to keep your blog going.
If you have a problem with this please arrange to move your blog elsewhere.
For the unfortunate users that were unable to read this post before the end of the day Sat, Aug 22, 2009 and click the link: the site was taken down before this user had a chance to comply. For the record, we’ve been around longer than most hosting providers on the Internet (1998) and aside from compliance with court orders and the DMCA, service providers have no liability that would require them to make such a demand. So where do we go from here?
Enough is enough! Unofficially, DoD’s Hosing Project took up hosting the Internet’s rejects years ago. Today we would like to officially say: refugees welcome! Our organization is well positioned to draw a line in the sand, and we will no longer suffer abuses of the DMCA that compromise fundamental human rights. If you believe in what we do then please support us. We are actively approaching the problem from both a legal and technical direction, and we need your help. Please check back soon for developments, but until then: “talk hard!”