Network Solutions Confused About The DMCA

from the that's-not-how-it-works dept

Last week we wrote about how Microsoft abused the DMCA to force Cryptome offline via Network Solutions. Since then, there's been some interesting scrambling by all parties involved. Mircorosft claimed that it never meant to take Cryptome down entirely, just the one document (though, it no longer is asking for it to be taken down). But that doesn't make much sense, because Network Solutions only had the ability to take down the whole site, not pieces of content. Either way, what really confused us was Network Solutions response to the DMCA takedown, which was that it waited until Cryptome filed a counternotice to take down the site. That's not how the DMCA works.

Yet, in a blog post sent over by Achura, Network Solutions tries to provide a "layperson's guide" to the DMCA. The only problem is that they get it wrong.

First, Network Solutions seems to think that the DMCA provides for a "notice-and-notice" system of dealing with takedowns, whereby it needs to first notify the user and wait for them to respond. Unfortunately, the DMCA does not follow such a procedure. It would be much better if it did. However, the DMCA is a "notice-and-takedown" setup, whereby the service provider who receives the notice needs to first take down the content, if it wishes to retain its safe harbor protections. It can choose not to take the content down (though, that rarely happens), but it risks losing the safe harbor protections. As the law itself clearly states:
upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
So NetSol is wrong to claim that they first need to notify the user and wait for the response.

Second, NetSol is then wrong in how it responds to a counternotice from the user. It claims:
If the customer challenges the Notice by submitting a Counter Notification that complies with the DMCA, the Host is required to disable access to the allegedly infringing site for a period of "not less than 10 business days, nor [sic] more than 14 business days" (the "Challenge Time Period").
Again, this appears to be incorrect. If it had been following the DMCA, it should have already taken the content down to retain safe harbors. It makes no sense to say once the counternotice is sent then you take down the content. Instead, the no less than 10 days/no more than 14 days refers to how much time the service provider is supposed to wait before putting the content back that it already took down. Of course, given that NetSol was confused about the notice-and-takedown process, you could see why it felt the need to take the content down after the counternotice -- because that's the point that it realizes it was legally supposed to take the content down earlier.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Can I play too ?, Mar 1st, 2010 @ 5:12am

    One Strike ?

    Sounds like a one strike situation. One accusation equals entire site down.

    Can anyone play this game or is it limited to a list of who's who of douchebaggery ?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Rekrul, Mar 1st, 2010 @ 5:17am

    Mircorosft claimed that it never meant to take Cryptome down entirely, just the one document (though, it no longer is asking for it to be taken down). But that doesn't make much sense, because Network Solutions only had the ability to take down the whole site, not pieces of content.

    It makes perfect sense; Microsoft didn't expect they'd get this kind of backlash and now they're lying to trying and deflect blame.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    MS Fanboy, Mar 1st, 2010 @ 5:27am

    Re: MSFT lie?

    There is no way an organization like microsoft would. They are too ethical to do that. Just ask their team of lawyers.
    Where is that sarc mark on my keyboard?

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Bryce, Mar 1st, 2010 @ 6:00am

    Have you read the act?

    In particular, 512(g)(2)(B) and (C)?

    Maybe Wikipedia's plain English explanation would be helpful?

    http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Take_down_an d_Put_Back_provisions

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    NAMELESS.ONE, Mar 1st, 2010 @ 6:16am

    I AM SPARTACUS

    if they get it wrong and it affects you
    SUE THEM
    = profits for YOU

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    ChurchHatesTucker (profile), Mar 1st, 2010 @ 6:45am

    Re: Have you read the act?

    What's your point?

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Overcast (profile), Mar 1st, 2010 @ 8:09am

    Screw Microsoft. Start pestering developers to write their crap for Linux. Only thing I do with Windows is GAME now. Screw their OS, Screw the copyrights and all that.

    Once a good game comes out for Linux - goodbye MicroSHAFT.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    NAMELESS.ONE, Mar 1st, 2010 @ 8:17am

    dont worry games ar coming for linux big time

    think russian schools using linux and how the kids will grow up and like i had that computer at 12 make games and so builds the industry
    then think china and india and parts a germany
    YOU get the idea and once it starts its game over for MS and this proprietary garbage handler

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Zac Morris (profile), Mar 1st, 2010 @ 9:19am

    Point/Counter-Point

    @I AM SPARTACUS: Wikipedia "content" is not considered a reference grade quality "source"; at best you can use it as an index card system to find actual "sources" in the footnotes.

    @Overcase: You need to check-out Wine Allows you to run native Windows games on Linux [actually getting better frame-rates than on Windows OS]

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    ChimpBush McHitlerBurton, Mar 1st, 2010 @ 10:08am

    Re:

    NnnnnnooooH one expects that kind of backlash!

    Amongst our weaponry are such diverse elements as fear, surprise, ruthless efficiency, and an almost fanatical devotion to busting every self-righteous mega corporation for high douchebaggery!

    General Fang... Get the Comfy Chair!

    CBMHB

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Mar 1st, 2010 @ 10:30am

    Re: Have you read the act?

    Have you read that thing? You know, the one over there? It might be helpful!

     

    reply to this | link to this | view in thread ]


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