Platinax relisted by Yahoo! and help with facing DMCA issues

• Platinax relisted on Yahoo!
• Issues of concern with DMCA procedures
• How to respond to a DMCA complaint
• General comments on DMCA
• Concluding comments

Platinax relisted on Yahoo!

Platinax is now in the process of being relisted by Yahoo!

The process began on Friday 9th July, after a pleasant phone-call from Holly at Yahoo’s US legal dept. This was in response to a DMCA counter notice I filed.

Surprisingly, it was denied that a DMCA had ever been made against Platinax.

It remains unclear why the domain was completely removed from Yahoo!, not least why an e-mail from Yahoo! Search Spam should have suggested a DMCA filing, while the legal department suggests being unaware of any DMCA.

I guess the most applicable phrase that comes to mind is “shit happens”.

Not least when you’re dealing with a large and complicated corporate body, where miscommunication can occur between departments.

I am, however, grateful to see the matter rectified, and would like to thank the Yahoo! staff for their generally helpful manner, once I was able to make contact with them.

I’d also like to especially thank Nebraska/chicagoHH for his help with dealing with the DMCA side of the issue, and especially to Nick Wilson at Threadwatch, whose profiling of the situation undoubtedly helped clear things up. Thanks also to DaveN, Jen, and NFFC for taking the time to look into the matter and discuss DMCA and the specifics of this case.

Altogether, the issue has been an experience and a slightly unpleasant one - it is simply fortunate that Platinax is built primarily to be an information site, rather than to generate a primary business income.

I dread to think of the consequences to a small “mom & pop” site, if Yahoo! search traffic originally brought a significant number of customers to their main products/services, only to be lost because “shit happens”.

This is not least if they’re not even aware of such a complaint, but also unaware of how to properly address such a complaint should they be alerted to a DMCA against them.

Issues of concern with DMCA procedures

Though this situation has been successfully resolved, the real questions that remain are with regards to general application of the DMCA by ISP’s, and especially as to whether there should be a far more transparent degree of reporting.

According to one Yahoo! representative I contacted:

Google reports at least some of their DMCAs to chillingeffects.org, and I’d like it if we did too. But Yahoo has a lot more businesses than Google — search, mail, hosting, domains, shopping, music, groups, jobs, auctions, directory etc. And my guess is we get many more complaints. Could be the sheer volume makes it unworkable for us.

Whilst there is a general expectation in webmaster circles that DMCA procedure requires that webmasters be notified of a DMCA filing against them, it’s also worth noting Section 512 of the DMCA offers Safe Harbour protection to ISP’s as follows:

While the safe harbor provisions provide a way for individuals to object to the removal of their materials once taken down, they do not require service providers to notify those individuals before their allegedly infringing materials are removed.

This means that, in effect, a website could be delisted from all ISP’s that a DMCA is reported to - without the website owner ever having been informed that a legal accusation has been brought against them.

This is perhaps the most chilling effect of the entire procedure - and one that should be corrected to ensure that the DMCA does exactly what it is claims to do, and that is to protect the rights of individuals to be associated with their own work - as opposed to being used as a potential tool for malicious use against innocent third parties.

At the moment there is a lot to recommend that, at least in some instances, the latter could unfortunately be the case. This is even more of a concern where copyright issues may have uncertain boundaries - for example, what exactly constitutes “fair use” when applied to syndicated content?

How to respond to a DMCA complaint

In the event that you are faced with a DMCA complaint and notified of this, then the first thing to realise is that you have now entered a process, and that to resolve the situation, you must play out the process according to its defined provisions.

Obviously, if you are made aware of a real complaint where you are shown to have breached copyright, then the first action you need to take is to remove the content in question.

However, the next step after is the same regardless as to whether you removed content, or wish to contest the allegations - you need to file a DMCA Counter Notice.

You can find an autogenerator at chillingeffects here: DMCA Counter Notice Generator.

By creating this and sending it to the relevant legal contact at the ISP in question, you are entering a legally recognised process in which you provide specific details as required by that legal process. The details effectively state who you are, where you live, and an affirmation (under penalty of perjury) that the details of your counter notice are true.

Obviously, if you’re posting a Counter Notice, you’ll have to allow for a couple of days mail delivery. Added to that, you need to consider that a large organisation may take a few days to properly address the information they have so far.

If your Counter Notice is suitably matched to an original DMCA complaint, then the other party has 14 days to make appropriate response to your own action.

If it is agreed that no copyright violation stands, then you can expect the entire relisting process to take about 30 days from the time of posting your Counter Notice.

General comments on DMCA

Overall, the DMCA is a legal process that is intended to protect rights, rather than take from them.

Filing a DMCA is relatively easy as well - Ian McAnerin lists some basic templates on his page Copyright Law and SEO Part 3, in which the purpose of the DMCA complaint is simply to:

Clearly identify the date and jurisdiction (your location).

Clearly identify yourself and your website.

Clearly identify the copyright violator.

Clearly outline the copyright violations using searches, screenshots, and so forth.

Demand removal of the offending material.

Attest that you are the owner of the copyright and send it’s registration (if you registered it).

However, it seems that the system is open to some degree of abuse.

Although chilling effects is pretty open about the potential for malicious reporting, and clearly reports that a number of complaints filed to Google are made by rival businesses against one another - it is also reported that ISP’s such as eBay provide little protection against malicious reporting

Concluding comments

Overall, it looks as if both the DMCA and ISP responses to DMCA complaints may yet undergo revision, and hopefully this can only be to help protect against misuse of the existing system.

In the meanwhile, the best way to deal with the DMCA is via public awareness of what the DMCA is, how it can be used, and how to respond to it as required.

However, it remains an issue of geniune concern that not all ISP’s will inform webmasters where a DMCA has been filed against them, and that some ISP’s may not even allow those accused to properly represent themselves against such complaints.

In the end, the only protection anyone has against the issue is that of awareness of where problems may occur, and awareness of how to best combat those issues where you may be made aware of them.

Hopefully, this experience and posting may be of value to anyone else who in future finds themselves involved in DMCA issues.

After all, “shit happens”.

To finish off, here is the e-mail from Yahoo! search that set it all off:

From : Yahoo Search Spam <(e-mail removed)>
Sent : 23 May 2005 20:20:48
To : “Brian Turner” <(e-mail removed)>

Subject : Re: Re-inclusion request

Hi Brian,

Yahoo removed your entire site from Yahoo! search results because of a DMCA. Please talk to Yahoo’s legal department at:
http://docs.yahoo.com/info/copyright/copyright.html

By mail:

Copyright Agent
c/o Yahoo! Inc.
701 First Avenue
Sunnyvale, CA 94089

By phone:

(408) 349-5080

By fax:

(408) 349-7821

By email:

copyright@yahoo-inc.com