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DMCA Abuse and the Changing Service Landscape
August 23rd, 2009 by cmooney

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]:
Hi,
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!”


6 Responses  
  • Linda Rosa, RN writes:
    August 23rd, 200917:11at

    Many thanks to DoD for its “Hosing Project,” and its “Hosting Project,” as well. You guys are my heroes!

    The “Search for Survivors” blogsite hadn’t written anything about Attachment Therapists that they hadn’t already written about themselves, i.e. that they speak at Attachment Therapy (ATTACh) conferences, and their literature has promote primarily Attachment Therapy beliefs and methods. They haven’t recanted. They just don’t like Search for Survivors’ *disapproval* of Attachment Therapy. Disapproval is, by the way, the same opinion national professional mental health organizations have of Attachment Therapy, but these organizations, such as the American Psychological Association, are too big to pick on.

    This is purely groundless harassment of “Search for Survivors,” only possible because of WordPress’ grossly unfair and *anti-free speech* policies.

    It is not hyperbole to say that survivors of Attachment Therapy endured literal physical and emotional torture as adopted children. (Numerous children did NOT survive it.) It angers me that outfits like WordPress have allowed Attachment Therapists to continue to harass survivors into adulthood.

  • Larry Sarner writes:
    August 23rd, 200917:53at

    WordPress needs to excoriated in the strongest possible terms. Obviously it is not their bottom-line that motivates them in this case, but their CONVENIENCE, especially the convenience of their STAFF. (“You have no idea of the continual complaints that are coming in…”!) Had they been concerned with their bottom-line, they would have remembered that controversy is the hallmark of blogs, and taking the role of editor-in-chief would give bloggers pause to use them as hosts. If I were an active member of the blogging community, I would be organizing a boycott of WordPress.

    It is laudable that DoD is taking up the cudgel. I hope your courage is rewarded with many bloggers fleeing WordPress and it’s ilk — not just because they have to, but BEFORE they have to.

    By the way, it wasn’t by “the end of day Sat, Aug 22″ that the blog was suspended. It was within hours of the early-morning warning given (by “Mark”?), certainly by 10am EDT. Interesting, an ultimatum issued in the wee hours on a weekend, and then not even waiting out the deadline given. I’ve seen exactly that kind of behavior before.

    I see that the blog in question is now back up with the phrase “Attachment Therapist” changed to “Holding Therapist”. I hope this is just a temporary concession until the blogger can move over to DoD! I predict it will only last until the persons making Mark’s life so difficult start complaining that this is an even horrific (though more precise) descriptor.

    Meantime:

    Attachment Therapist! Attachment Therapist! Attachment Therapist! Attachment Therapist! Attachment Therapist! Attachment Therapist!

    (The above applies to Heather Forbes, Ronald Federici, Arthur Becker-Weidman, Daniel Hughes, David Ziegler, Gregory Keck, and a bunch more I could name.)

  • John Dorsay writes:
    August 28th, 200904:24at

    A development, perhaps. The cyberstalking fanatics that hounded wordpress into submission over childtorture.wordpress.com, spammed several hundred usenet groups with thousands of insane screeds attacking people like Larry and Linda (authors of the preceding comments), and webbed dozens if not hundreds of libelous posts about the same people to countless online fora, have declared they have a new target. Guess what. The new target is Project DoD.

    http://axisofquackery.wordpress.com/2009/08/28/project-dod-is-the-dark-tower-of-quackery-about-to-fall/

    Please keep us posted.

  • Larry Tate writes:
    September 5th, 200907:00at

    I think I’m in Love. I just discovered you and all I can do is say thanks, for now. The following note was to a little web site that may or may not wash up on your shore. They are being pummeled by (redacted)and it is nice to see there are people out there that care and can take action.

    More stories about Mr. (redacted) all over the news. Some tough redacting going to have to happen there. Funny how these things tend to take on a life of their own.

    A tangled web we weave.

    Freedom of speech, but don’t say anything bad about me. How can this be resolved?

    In court of course. Obviously its a potential tool for intimidation and good ol bullying. And lets face it, there are people that will say terrible things about others. Remember your “Sticks and Stones” chant?
    So in some instances court is possibly the best way to “get even”.
    Yet, if we could take the money out of it, the money is still there due to court costs and attorneys fees.

    What if there was an internet libel / slander court / blog set up and the case is presented by both sides, then voted on by everyone on the internet that passes by? It would be mandatory to run everything through this blog before it can get near any court house. The plaintiff and the defendant each get a mini website to present their facts. A moderator attempts to vet the facts via the P. and D. and any other available means. It is put up to the public for a vote with a brief comment and the winner has the option to pursue the issue further if desired. I know it is goofy and there are a million holes
    that would need to be plugged in the idea, if it is even plausible.
    I’m sure there is an attorney out there that is more than willing to tell me how many ways it couldn’t work.

    But, this issue is not going away. Something will need to get done.
    Oh, and if you write anything bad about this comment you will hear
    from my “attourny”.

    Thank you Journal and keep the faith.
    LT

  • Technology & Marketing Law Blog writes:
    December 31st, 200916:22at

    512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici…

    By Eric Goldman Project DOD, Inc. v. Federici, 2009 WL 4910320 (D. Me. Dec. 13, 2009) 17 USC 512(f) creates……

  • cmooney writes:
    January 3rd, 201022:28at

    Another example of the DMCA takedown provisions being used to censor commentary:

    http://www.youtube.com/watch?v=A-cmHJthuq8


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