Christian Dawson Of I2Coalition's Favorite Techdirt Posts Of The Week
from the and-a-few-not-so-favorites dept
I’ve decided to use my most favorite and least favorite Techdirt posts of the week to illustrate a bit about the state of the Internet from where I sit, shining a light on a few additional intriguing posts along the way.
I loved reading Mike Masnick’s update on what Trent Reznor is doing today, and not just because Mike needed to get off the phone with me a few days ago as Trent was calling. I see this story as an update to one of Mike’s greatest hits, his 2009 Trent Reznor Case Study. So many of us who fight for intellectual property reform — who were on the front lines of SOPA and PIPA — are huge music fans and movie nerds. We respect artists and want to encourage their innovation and evolution. Mike continues to show us ways that the new economy can be great for artists of all kinds, and that we shouldn’t burn down the new economy to preserve the old.
My least favorite post this week by far was the one on PhoenixNAP, which also referenced an earlier post about ServerBeach — both criticizing those providers for overreach on content takedown procedures.
The companies I work with build the “nuts and bolts” of the Internet. I run a web hosting company called ServInt, and I am Chairman of a policy-centered trade association of web hosting, data center and cloud providers called the Internet Infrastructure Coalition, or i2Coalition. Though neither of the two companies are in our association, hosting is a small community. I know those guys personally, and while I am not intimately familiar with either case, I know the challenges this industry faces quite well.
I totally understand Mike’s point that these companies seem to have thrown the baby out with the bath water. However, it’s important to put them in context. Placing them in the same category as those who seek to censor speech or stifle innovation is unfair, and damages our collective ability to keep focus on activities that damage our collective goals.
ServerBeach and PhoenixNAP have a really fine line to walk; one that my company walks all the time. It’s important to remember that what Internet infrastructure companies are trying to do is provide for their customers while avoiding becoming contributory infringers. I’m sure that ServerBeach and PhoenixNAP, like ServInt, have well established procedures to help avoid this risk. However, sometimes a company’s infrastructure setup may not correspond exactly with either the “right” way of complying with a statute, or even the “best” way. It’s important to keep in mind that infrastructure companies are in the business of moving information as quickly and cost effectively as possible, and not taking sides on any speech issue. My issue with Mike’s post is that it appears to take the position that either company should have structured their environment to maximize speech or minimize the effects of the DMCA or other laws. Neither position reflects the business we’re in.
My industry faces challenges, and we can gain great insight into what those challenges are simply by reading Techdirt each week. The things that Techdirt generally fights for they do so on behalf of an open Internet and its users, and that includes Internet infrastructure providers. Just this week you can go to Techdirt and see what we’re faced with, including:
- a story that features a statute – the DMCA – that operates like a mathematical equation. For infrastructure companies this creates a particular problem: since they generally can’t access a customer’s server, if only a couple of bits of information are bad, and the customer refuses to take action, the entire server may have to be taken down.
- a fascinating piece on copyright trolls, who exploit our industry and find ways to sue and shake down Internet infrastructure players. As most Internet companies are trying to behave responsibly and walk that fine line, we need to be constantly concerned about those who seek to profit from any perceived misstep.
- a grim reminder of what the trademark landscape looks like today, via Tim Tebow. Case law for contributory infringement of trademarks is a moving target. Because Internet infrastructure providers don’t have safe harbor protection from their customer’s use of trademarks as we do under the DMCA for copyright, providers often have to take the most conservative position available to them.
- another reminder of how the U.S. patent system litigates innovation and destroys progress. One of our biggest fears was that SOPA/PIPA was poised to reshape the Internet into the broken image of the U.S. patent system by opening up giant new pathways to contributory infringement. The direct and indirect costs of where patents are today are devastating.
- a shocking look at just how much some lawmakers still don’t understand the Internet. I shouldn’t be, but I am still shocked when I come across legislators who have no understanding of our industry whatsoever and seem unwilling to understand our industry. They always seem to be the ones who most want to regulate it.
Now that we’ve looked at some of the best from this week on Techdirt, let’s draw parallels between my most and least favorite posts.
Trent Reznor, who is back with a major label after years innovating on his own, sat down with Mike to dispel rumors that he sold out his principles over a big check. I read the piece and was convinced that any pre-conceived notions I had about the move were likely wrong, or at least more complicated than I had given them credit for.
Similarly, I don’t know an Internet infrastructure provider who likes to kick off a client. I am left feeling we don’t have the whole PhoenixNAP or ServerBeach story. When you’ve got one side wanting to air their grievances, and the other that is by necessity respecting customer confidentiality and not talking, it’s hard to be definitive about what went wrong. I’ve been in those shoes. Though I may have some sympathies for the predicaments of PhoenixNAP and ServerBeach, I agree that hosts need better tools and procedures in general to address complaints in ways that are more fair to consumers.
All in all, it was a fascinating week on Techdirt, and like most weeks I can draw direct parallels to what we read on Techdirt every day and what challenges we face here on the front lines of the Internet. That’s why I love making Techdirt a part of my day, everyday, and why I was thrilled to get a chance to recap a very poignant week.
Comments on “Christian Dawson Of I2Coalition's Favorite Techdirt Posts Of The Week”
The real problem with the ServerBeach and PhoenixNAP cases is that neither company has control over their customers actions, but unless they took action they would become liable for what they could not control. Providing real, or virtual servers, should not put a company at risk of being held liable for what their customers do with the servers. Such companies should only be asked to pass on a communication, or provide customer contact details to a court on production of a subpoena.
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Something that would very much help in this area would be a court spelling out the exact limitations.
How many of these overreactions are due to legal nastygrams attached threatening giant lawsuits unless they get exactly what they want, even if its overreaching.
As we have seen large pockets have no problem running lawsuits to “punish” companies who don’t respond how they want them to.
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I think laws are required limiting the liability of service providers, whether they provide machines, or a software platform such as WordPress. They should only be required to pass on communications on request, with any further action such as release of customer details, or shut down of servers requiring a court order.
Unfortunately the MAFIAA members will scream that it will cost them too much. When they do they should be reminded that they seem to have no problem in forcing costs on other people.
This should help protect the service providers from threats of law suites.
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They need something like AntiSlapp law on their side.
If someone starts an ignorant lawsuit against a provider who has done what the law requires or trying to skip the steps they get a judgement throwing it out, costs, and a nice fee from the idiot who filed the suit in the first place.
Any provider should be able to show the courts, we got notice x, did our duty, and now they are suing us. Bing bang boom.
To often the courts are just a way to apply more pressure to meaningless claims and run up bills so smaller providers will just fold.
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It would also be helpful if the lawyers bringing an ignorant law suite were made jointly liable. At the moment they get paid regardless of outcome, and so are likely to ‘support’ a bogus suite. Hitting the lawyers income might encourage them to give honest advice.
While I agree with the point that hosting companies do face a challenge with exactly what to do in regards to content takedown notices…PhoenixNAP are clearly in the wrong, what with having taken down 1.5 million blogs in regards to a notice about one piece of content. If it was a technical error, like someone clicked in the wrong place, fine, as long as the error is quickly fixed and an apology issued. However, we haven’t heard that.
Two notes
This seems confused. If PhoenixNAP is a hosting company, then it has physical possession of the servers and root access to those servers and can selectively disable specific content on them and need not overblock.
On the other hand, if PhoenixNAP is providing only bandwidth — that is, is the upstream connectivity provider of a hosting company rather than the hosting company — the DMCA notice-and-takedown rule does not apply to them as they aren’t hosting any third-party content on any servers of their own. The downstream hosting company would be the one that had to comply with a takedown notice — but would have physical possession of the servers to disable access to specific content. Their connectivity provider can completely ignore a DMCA notice that is mis-sent to them, and again they need not overblock.
Basically, either the servers are yours, the DMCA applies, and you can disable specific content (because the servers are yours), or the servers are someone else’s and that someone else is the one who has to handle takedown requests.
The only possible gray area is if you do something weird, like physically possess the hardware but give up control of it (even the root account) entirely to a customer. In that case, I would think the law should consider the one who has control of the machine’s content to be the proper party for a DMCA notification, though — it’s effectively their server and you’re more like a company renting office space or a self-storage shed they keep it in, and possibly renting the hardware too. You’re again not the actual web host — whoever has the root password and controls the httpd on the machine is the web host. You’re again a type of upstream provider in that circumstance, and upstream providers certainly aren’t supposed to be targets of DMCA notifications — if they are, what’s next? DMCA takedowns sent to Con Ed to turn off the electricity at a data center that is serving allegedly-infringing content?
They fear what they don’t understand. And they seek to regulate what they fear.
Also, consider who actually pays them, and the old adage that it’s difficult to get someone to understand something if his paycheck depends on his not understanding it.
Re: Two notes
Not trying to be a pain but a lot of these hosting companies would not be worth what they advertise if they access customer data as easy as what you say.
A lot of companies and people hire server from companies and there would be huge privacy implications if they jump on and access the data.
I work for a company where we lease servers to the customer, manage the OS and a lot of the files on them. This specific scenario we use a data center to host the servers due to mother nature destroying ours. If the data center owners decided to log on and delete/block data as it is on their SAN this would not be acceptable from a business perspective in any way whatsoever.
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I had no idea before today that hosting companies held themselves to such high standards. I imagine the people that send DMCA notices, and the people that enforce them, are also unaware.
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In that situation, the appropriate target for a DMCA notice is the server operator, even if they lease space in someone else’s datacenter instead of having their own. The datacenter provider is, essentially, a utility like Con Ed or Verizon DSL, and is not directly a content host.
Christian Dawson = piracy apologist.
Blargha flargha!