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It isn’t really fair to pick on Linode, all US hosting providers work the same way. When someone files a DMCA claim, if you want to keep the content up you nee

by lacker 7y ago

It isn’t really fair to pick on Linode, all US hosting providers work the same way. When someone files a DMCA claim, if you want to keep the content up you need your lawyer to file a counterclaim. Hosting providers are then allowed to leave it up, and you can fight about it in court. It sounds from this article like the newspaper didn’t have a lawyer, or at least not a lawyer familiar with American law. That sucks but all you can really do about it is to get a lawyer, or use a non-US hosting solution.

kijin 7y ago
This is a common misconception. You can't use a counter-claim to keep your content up. You can only use one to have your content reinstated after it has been removed. https://www.dmca.com/faq/What-is-a-DMCA-Counterclaim https://www.dmca.com/faq/What-is-a-DMCA-Counterclaim
- leeoniya 7y ago
  we've gone through this with linode. they give you exactly 96 hours to remove the content and then you can go through the dispute process. it took about 2 weeks to work things out. we had used some images from an mfg's pdf installation manual on a page that was reselling that mfg's own products which we were buying from their offical distributor - the only way to get the product. talk about absurd. some of the media that they claimed was theirs was in fact our own original graphics/images. it didn't matter, we had to remove everything that was in their overly broad claim. the DMCA is no joke, but is also a big fucking joke. it's trivial to completely destroy someone's business by simply making fraudulent claims (it's guilty until proven innocent). and it's almost impossible to prove that the claim was made in bad faith rather than simply in error. these claims are usually made by some contracted third party that flags everything that smells off. it's the new patent trolling.
  - rosser 7y ago
    We get DMCA claims all the time — most often from our customers' own counsel. Even so, the explicit, as automated as can be policy is to pull the content, and let the lawyers sort it out amongst themselves. It is very much a joke, and not a joke.
  - Moru 7y ago
    Solution: Host your stuff outside of country, don't use cloudflare or other US based services
    - leeoniya 7y ago
      sorry, no. this is a shit non-solution. first, 97% of our customers are US-based. hosting elsewhere would destroy the site performance we worked hard to maximize. second, we're a us-based company, subject to US laws, so if the ISP doesnt take down our server, some other legal means will.
      - Moru 7y ago
        Well, you won't have much readers in US if someone starts to systematically use the DMCA for taking down your whole site. Many people have warned about this problem when it first showed up but the record companies and big newspapers were happily behind the new law. Now they get to reap the fruits they were warned about.
    - srazzaque 7y ago
      I ask this as someone who is not fully across the ins and outs of DMCA. Linode has non-US data centres (eg Singapore). If the node hosting the content was just outside the US, would they need to do a take down? Or is the fact that Linode is a US-based company make this not matter.
      - ahje 7y ago
        As someone who's worked in an abuse desk for an EU-based hosting business, I can confirm that: 1) American businesses will send DMCA requests for pretty much anything -- sometimes they request take-downs of their own local subsidiaries 2) Other foreign entities will send DMCA requests even though there is no way US laws could be applied on the complaining party, us (the host), or the customer. 3) In both of the scenarios above, there will be _a lot_ of noise when DMCA requests are rejected because US laws don't apply. Usually, we simply took the content down when it was obvious copyright infringement (Windows ISO images and so on -- yes, people still put stuff like that on their web sites), as that is a TOS violation, and TOS violations is something a host can handle regardless if the legal status of the content. If the customer claimed they owned the copyright on some original content we simply told the people complaining to go through the local courts instead of invoking foreign laws. Obviously, we have complied in a few cases where one of the new guys handled complaints about businesses' own web sites or subsidiaries' web sites. Laughs were had. I don't know how a US host acting abroad would handle it though. I suspect they would apply the same rules everywhere.
  - IfOnlyYouKnew 7y ago
    It seems like you have a beef with copyright law, not with the DMCA. Using their images just is a clear violation of copyright, even though I agree that it is ridiculous for them to go after their own resellers.
    - leeoniya 7y ago
      it's ridiculous for a DMCA to be Avenue A. they could have simply picked up the phone and talked to us first or sent a nice email. then at least we wouldnt have to deal with a 96 hr deadline and be forced to take down our own content (along with theirs) for 2 weeks. in addition, how do you show a potential buyer installation diagrams of a technical product without risking your own version being wrong (and not UL-compliant) vs the one in the approved manual?
cft 7y ago
Absolutely not. You can ignore a defective DMCA notices and see if the claimant files a lawsuit. Google routinely does this [1]. It is a business risk choosing between losing a client vs getting sued. If you value your clients, you should have a review process to access the legality of DMCA notices you receive. 1. https://torrentfreak.com/google-keeps-rejecting-hollywoods-broad-takedown-requests-150307/ https://torrentfreak.com/google-keeps-rejecting-hollywoods-b...
- leeoniya 7y ago
  > You can ignore a defective DMCA notices and see if the claimant files a lawsuit. if you are your own ISP, then maybe you can. AFAIK, no ISP or hosting provider in the US is going to risk it. most (all?) ISPs require the customer to remove the content first and ask questions later.
  - kd5bjo 7y ago
    Though it may take some time, a counter-notice reinstating the content is supposed to be just as automatic as a takedown removing it. Presumably, failure to do so has similar risks to the ISP of their customer suing them for a DMCA violation.
    - leeoniya 7y ago
      except a take-down has a low max time limit and a reinstatement has a large min time limit. it's engineered for maximum disruption prior to any evaluation of fact.
PhasmaFelis 7y ago
> Our 96-hour deadline was fast approaching — with compliance demanded by 2am on Saturday — by the time the M&G print edition hit the streets on Friday morning. Fridays are traditionally the biggest days for online traffic at the M&G. This is when what appears in the weekly paper is published digitally too. [...] But, shortly after 8am on Friday morning, Linode informed us that our account had been suspended for failure to comply. They’d jumped the gun. [...] The M&G Online, a national news publisher and the oldest news site in Africa, had been taken down. Even if Linode really didn't have a single recourse, they still chose to go beyond their legal obligations and shut the site down early, with timing that at least looks deliberately calculated to cause the most damage. They don't deserve your advocacy.

by lacker 7y ago

kijin 7y ago

This is a common misconception. You can't use a counter-claim to keep your content up. You can only use one to have your content reinstated after it has been removed. https://www.dmca.com/faq/What-is-a-DMCA-Counterclaim https://www.dmca.com/faq/What-is-a-DMCA-Counterclaim

leeoniya 7y ago
we've gone through this with linode. they give you exactly 96 hours to remove the content and then you can go through the dispute process. it took about 2 weeks to work things out. we had used some images from an mfg's pdf installation manual on a page that was reselling that mfg's own products which we were buying from their offical distributor - the only way to get the product. talk about absurd. some of the media that they claimed was theirs was in fact our own original graphics/images. it didn't matter, we had to remove everything that was in their overly broad claim. the DMCA is no joke, but is also a big fucking joke. it's trivial to completely destroy someone's business by simply making fraudulent claims (it's guilty until proven innocent). and it's almost impossible to prove that the claim was made in bad faith rather than simply in error. these claims are usually made by some contracted third party that flags everything that smells off. it's the new patent trolling.
- rosser 7y ago
  We get DMCA claims all the time — most often from our customers' own counsel. Even so, the explicit, as automated as can be policy is to pull the content, and let the lawyers sort it out amongst themselves. It is very much a joke, and not a joke.
- Moru 7y ago
  Solution: Host your stuff outside of country, don't use cloudflare or other US based services
  - leeoniya 7y ago
    sorry, no. this is a shit non-solution. first, 97% of our customers are US-based. hosting elsewhere would destroy the site performance we worked hard to maximize. second, we're a us-based company, subject to US laws, so if the ISP doesnt take down our server, some other legal means will.
    - Moru 7y ago
      Well, you won't have much readers in US if someone starts to systematically use the DMCA for taking down your whole site. Many people have warned about this problem when it first showed up but the record companies and big newspapers were happily behind the new law. Now they get to reap the fruits they were warned about.
  - srazzaque 7y ago
    I ask this as someone who is not fully across the ins and outs of DMCA. Linode has non-US data centres (eg Singapore). If the node hosting the content was just outside the US, would they need to do a take down? Or is the fact that Linode is a US-based company make this not matter.
    - ahje 7y ago
      As someone who's worked in an abuse desk for an EU-based hosting business, I can confirm that: 1) American businesses will send DMCA requests for pretty much anything -- sometimes they request take-downs of their own local subsidiaries 2) Other foreign entities will send DMCA requests even though there is no way US laws could be applied on the complaining party, us (the host), or the customer. 3) In both of the scenarios above, there will be _a lot_ of noise when DMCA requests are rejected because US laws don't apply. Usually, we simply took the content down when it was obvious copyright infringement (Windows ISO images and so on -- yes, people still put stuff like that on their web sites), as that is a TOS violation, and TOS violations is something a host can handle regardless if the legal status of the content. If the customer claimed they owned the copyright on some original content we simply told the people complaining to go through the local courts instead of invoking foreign laws. Obviously, we have complied in a few cases where one of the new guys handled complaints about businesses' own web sites or subsidiaries' web sites. Laughs were had. I don't know how a US host acting abroad would handle it though. I suspect they would apply the same rules everywhere.
- IfOnlyYouKnew 7y ago
  It seems like you have a beef with copyright law, not with the DMCA. Using their images just is a clear violation of copyright, even though I agree that it is ridiculous for them to go after their own resellers.
  - leeoniya 7y ago
    it's ridiculous for a DMCA to be Avenue A. they could have simply picked up the phone and talked to us first or sent a nice email. then at least we wouldnt have to deal with a 96 hr deadline and be forced to take down our own content (along with theirs) for 2 weeks. in addition, how do you show a potential buyer installation diagrams of a technical product without risking your own version being wrong (and not UL-compliant) vs the one in the approved manual?

cft 7y ago

Absolutely not. You can ignore a defective DMCA notices and see if the claimant files a lawsuit. Google routinely does this [1]. It is a business risk choosing between losing a client vs getting sued. If you value your clients, you should have a review process to access the legality of DMCA notices you receive. 1. https://torrentfreak.com/google-keeps-rejecting-hollywoods-broad-takedown-requests-150307/ https://torrentfreak.com/google-keeps-rejecting-hollywoods-b...

leeoniya 7y ago
> You can ignore a defective DMCA notices and see if the claimant files a lawsuit. if you are your own ISP, then maybe you can. AFAIK, no ISP or hosting provider in the US is going to risk it. most (all?) ISPs require the customer to remove the content first and ask questions later.
- kd5bjo 7y ago
  Though it may take some time, a counter-notice reinstating the content is supposed to be just as automatic as a takedown removing it. Presumably, failure to do so has similar risks to the ISP of their customer suing them for a DMCA violation.
  - leeoniya 7y ago
    except a take-down has a low max time limit and a reinstatement has a large min time limit. it's engineered for maximum disruption prior to any evaluation of fact.

PhasmaFelis 7y ago

> Our 96-hour deadline was fast approaching — with compliance demanded by 2am on Saturday — by the time the M&G print edition hit the streets on Friday morning. Fridays are traditionally the biggest days for online traffic at the M&G. This is when what appears in the weekly paper is published digitally too. [...] But, shortly after 8am on Friday morning, Linode informed us that our account had been suspended for failure to comply. They’d jumped the gun. [...] The M&G Online, a national news publisher and the oldest news site in Africa, had been taken down. Even if Linode really didn't have a single recourse, they still chose to go beyond their legal obligations and shut the site down early, with timing that at least looks deliberately calculated to cause the most damage. They don't deserve your advocacy.