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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, counternotice, dmca, takedowns
Companies: cryptome, microsoft, network solutions
Reader Comments
Subscribe: RSS
View by: Time | Thread
One Strike ?
Can anyone play this game or is it limited to a list of who's who of douchebaggery ?
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
Re: MSFT lie?
Where is that sarc mark on my keyboard?
[ link to this | view in thread ]
Have you read the act?
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
[ link to this | view in thread ]
I AM SPARTACUS
SUE THEM
= profits for YOU
[ link to this | view in thread ]
Re: Have you read the act?
[ link to this | view in thread ]
Once a good game comes out for Linux - goodbye MicroSHAFT.
[ link to this | view in thread ]
dont worry games ar coming for linux big time
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
[ link to this | view in thread ]
Point/Counter-Point
@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]
[ link to this | view in thread ]
Re:
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
[ link to this | view in thread ]
Re: Have you read the act?
[ link to this | view in thread ]