homepage Welcome to WebmasterWorld Guest from 54.211.95.201
register, free tools, login, search, pro membership, help, library, announcements, recent posts, open posts,
Become a Pro Member
Home / Forums Index / WebmasterWorld / Professional Webmaster Business Issues
Forum Library, Charter, Moderators: LifeinAsia & httpwebwitch

Professional Webmaster Business Issues Forum

    
Landmark Court Decision Holds Webhost Liable for Acts of Hosted Site
Sites Sellling LV Knockoffs. Host Advised and Allows Sites to Operate.
Webwork




msg:3982748
 4:21 pm on Sep 2, 2009 (gmt 0)

Webhost Liable for $32 Million for Contributing to Trademark Infringement [computerworld.com]

In a verdict handed down last week, the jury assessed damages totaling more than $32 million against hosting companies Akanoc Solutions Inc., Managed Solutions Group Inc., both in Fremont, Calif., and Steven Chen, the owner of the two companies. In awarding the damages, the jury agreed with Paris-based Louis Vuitton Malletier S.A.'s claims that the defendants knowingly allowed several Web sites they hosted to sell products that infringed Louis Vuitton's copyrights and trademarks.

Wow! Wow! WOW!

I foresee lawyers and other interested parties now sending notices, along with DMCAs. that include reference to the above jury verdict.

Want to bet that webhosts will be courageously standing up for their customers when such letters arrive?

 

Demaestro




msg:3982776
 4:50 pm on Sep 2, 2009 (gmt 0)

Ouchers,

Going to be tough for any webhost to give their customers the benefit of the doubt when a dispute arises.

Yes Louis Vuitton made the host aware of the infringement but the host has to take the word of Vuitton that their claim is valid even without a ruling and they have to shut the site down?

I find this somewhat unfair considering that there are special interest groups out there that are falsely filing DMCA's to remove content that is contrary to their special interest.

You can see this is rampant in Youtube now, unpopular speech is being removed by false DMCA filings, one of the reasons for this is it is easy to file a DMCA, it is hard to convince the host that you aren't infringing.

With a ruling like this it will be even harder to convince a host you are in the right... the price tag for being wrong is too high and most will start to err on the side of caution.

In this case I am not totally sympathetic to the host though that is a lot of money.

signor_john




msg:3982793
 5:06 pm on Sep 2, 2009 (gmt 0)

I find this somewhat unfair considering that there are special interest groups out there that are falsely filing DMCA's to remove content that is contrary to their special interest.

Isn't that a risky strategy, given the fact that the law specifically states that filing a false DMCA report can result in damages (including court costs and the injured parties' legal fees)?

Demaestro




msg:3982801
 5:19 pm on Sep 2, 2009 (gmt 0)

Yes it is very risky and stupid, however it is still being done.

The goal seemingly is to quiet a point of view. By the time it is all sorted out, even if the content is deemed to be non-offending, the filer has accomplished their goal of silencing a point of view they don't agree with for an extended period of time.

If a point of view is time sensitive than having it back after a certain point may not matter.

Example:
I post a site that promotes one politician and denounces another, I post my own original material on my site, including a series of pictures from a rally of the politician I don't like... someone on his "team" files a DMCA claiming those are their pictures.

Maybe the filer even believes they are his photos or out of a misunderstanding of the law thinks that any pictures from their event is their property even if I took them... regardless they contact my host, the site is taken down with threat of this ruling, I beg and plead and show the raw photos on my camera, but the host won't risk it and by the time it is sorted out the election is over and I have been silenced.

I know this is a fringe circumstance but there are lots of things like this happening.

There is a big stink going on right now with a creationist (ID) group who filed false DMCA's

Search:
discovery institute false dmca

ken_b




msg:3982803
 5:22 pm on Sep 2, 2009 (gmt 0)

I beg and plead and show the raw photos on my camera, but the host won't risk it

Does the host have a choice?

Aren't they required to put the site back online if you file a counter notice?

I really should learn more about this stuff I guess.

Demaestro




msg:3982806
 5:27 pm on Sep 2, 2009 (gmt 0)

Of course they have the choice.

It may come down to the contract you have with them but I suspect that most hosts have something built in that gives them the right to terminate services or err on the side of caution in these matters.

It is all about risk management.

ken_b




msg:3982808
 5:30 pm on Sep 2, 2009 (gmt 0)

That may be, but you skipped over the question about counter notices.

Aren't they required to put the site back online if you file a counter notice?

agentalpha




msg:3982809
 5:32 pm on Sep 2, 2009 (gmt 0)

The verdict "establishes a standard" for trademark infringement complaints on the Internet, said Andy Coombs, Louis Vuitton's counsel, in a statement. "It represents a positive contribution to existing case law and marks the first time statutory damages have been awarded against those found contributorily liable for trademark infringement," Coombs said.

If the courts uphold the principal of being "contributorily liable for trademark infringement" I think we'll see a new round of cases against Google for their AdWords trademark policy. They've won/settled those cases so far but now potential plaintiffs can point to this case.

It'll be interesting to see where this leads us. If web hosts are now held responsible for sites they host then it's just a matter of time before someone wants Facebook, Twitter, MySpace, etc. to be responsible for their members content.

It's a slippery slope.....

ken_b




msg:3982815
 5:39 pm on Sep 2, 2009 (gmt 0)

Here, I found it:

[copyright.gov...]

If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

I suppose the 10 - 14 days could be too long a time for some time sensitive issues.

Demaestro




msg:3982821
 5:53 pm on Sep 2, 2009 (gmt 0)

Ken, sorry I wasn't really sure if they are required or not. I knew that they should, just not if they HAVE to.

I suppose the system has always been open to this kind of abuse regardless of this judgment.

chicagohh




msg:3982828
 6:04 pm on Sep 2, 2009 (gmt 0)

Isn't that a risky strategy

It is so easy to file a DMCA from a false identity it's hardly worth writing about - A throw away email address, prepaid cell phone and a Kinko's or MBE fax is all you need. Don't forget to wear a hat...

Counter Notices work to bring your pages back, but if you're fighting against a determined person who doesn't car about the law... well, they just file a SECOND DMCA > then a THIRD and on and on...

I have been involved in DMCA wars and it gets ugly real fast.

Hugene




msg:3982838
 6:18 pm on Sep 2, 2009 (gmt 0)

Move your webhosting to Canada. That should do the trick, at least for now; and in general in Canadian law suing for damages is more complicated, and juries aren't that trigger happy.

np2003




msg:3982980
 8:36 pm on Sep 2, 2009 (gmt 0)

This host should of compiled with the DMCA take down orders, but it turned the other way around and is now paying for it.

FYI, you can file a fake DMCA, but with all DMCA filings, the other party has time to reply to it. Only when they don't reply back with a statement that they own the copyrgith, does the removal of the content proceed.

smallcompany




msg:3982996
 8:49 pm on Sep 2, 2009 (gmt 0)

Web hosting companies should be liable for what's being hosted on their servers.
Same with domain name markets.

Demaestro




msg:3983000
 8:56 pm on Sep 2, 2009 (gmt 0)

Web hosting companies should be liable for what's being hosted on their servers.

Come again?

So if a landlord has a tenant who turns out to be growing marijuana or cooking meth in the basement that the landlord should be liable?

If a landlord's tenant beats his wife then the landlord should be held liable?

I am not sure where you are coming from with that statement.

You really feel that it is the job of a private corporation to police it's customers?

I agree that once served with a DMCA the host should act, and not ignore it... but to say they are liable simply for having a client who isn't doing the right thing is something I can't agree with.

Someone rents a car and drinks and drives and the car rental place is liable? That is absurd.

piatkow




msg:3983040
 9:56 pm on Sep 2, 2009 (gmt 0)


So if a landlord has a tenant who turns out to be growing marijuana or cooking meth in the basement that the landlord should be liable?

If they know it is taking place and choose to ignore it - yes.

koan




msg:3983069
 11:56 pm on Sep 2, 2009 (gmt 0)

I agree that once served with a DMCA the host should act, and not ignore it... but to say they are liable simply for having a client who isn't doing the right thing is something I can't agree with.

No one is saying web hosts should monitor the content hosted on their site. Once notified of an infringement, however, it is their legal obligation to act. They're the only one who can remove those sites that infringe on others rights. Plagiarism is a rampant problem.

swa66




msg:3983119
 2:59 am on Sep 3, 2009 (gmt 0)

Plagiarism is a rampant problem.

Since when is plagiarism against the law ?
It is academic suicide, but illegal ?

Copyright infringement != Plagiarism

swa66




msg:3983125
 3:11 am on Sep 3, 2009 (gmt 0)

It's probably important to note that the ISPs were not convicted for copyright (which is what the DMCA protects them from as long as they do the right thing according to that law) but for trademark violation.

The easiest solution would be to quickly craft a law that protects carriers and ISP from other violations like the DMCA protects them (and in one go remove some of the really silly stuff in the DMCA in one go (like making it illegal to tell how to bypass copy protection schemes) )

smallcompany




msg:3983126
 3:13 am on Sep 3, 2009 (gmt 0)

I am not sure where you are coming from with that statement.

You really feel that it is the job of a private corporation to police it's customers?

I'm coming from what "piatkow" and "koan" already said in their posts.

If a hosting provider or domain broker has been informed about TM infringement case, they would HAVE TO act, because they're liable.

So, this is not about a landlord having somebody growing marijuana in the apartment that he does not enter, but an owner or tenant renting a room to a student that grows marijuana.
Or, giving a garage key fob to a car thief.

ken_b




msg:3983128
 3:15 am on Sep 3, 2009 (gmt 0)

It's probably important to note that the ISPs were not convicted for copyright ...

The articles says:

... has found two Web hosting companies and their owner liable for contributing to trademark and copyright infringement ...

swa66




msg:3983151
 4:37 am on Sep 3, 2009 (gmt 0)


It's probably important to note that the ISPs were not convicted for copyright ...

The articles says:

... has found two Web hosting companies and their owner liable for contributing to trademark and copyright infringement ...

Ok, meant to point to the quotes they have on their page 2 from the lawyers, they don't point to copyright or DMCA, but only to trademark.

piatkow




msg:3983244
 8:17 am on Sep 3, 2009 (gmt 0)

In my view, the process should be:
1. Hosting service notified of breach
2. Hosting service notifies customer and gives them a reasonable time limit to remove the breach or challenge the claim
3. A challenge should trigger a further review period
4. If customer fails to act then suspend site at end of time limit

Failure to follow an appropriate process such as that suggested should then make the hosting service liable.
NB I am not explicitly referring to US law, the basic process should apply under any jurisdiction. I am also talking specifically about hosting not about services such as YouTube.

Certainly a hosting provider should not act arbitrarily nor should it be expected to pro-actively identify copyright or trademark breaches.

2clean




msg:3983246
 8:28 am on Sep 3, 2009 (gmt 0)

This may is landmark decision in the US, but "contributing to copyright infringement" was levied at an Australian webhost a number of years ago.

At the time the webhost was actually shown to be complicit as they were advertising on the website that was linking to copyrighted protected material - their defense that they did not know, fell on deaf ears.

Similar story here, the ISP is not getting nailed for copyright infringement but in being participatory in the act of copyright infringement.

2Clean.

fashezee




msg:3983320
 12:14 pm on Sep 3, 2009 (gmt 0)

Will they hold Telecom companies liable for phone scams now?
Not too sure about this one....

nahdoic




msg:3983395
 3:11 pm on Sep 3, 2009 (gmt 0)

Steven Chen, the owner of the two companies

Steven Chen? Not THE Steve Chen i.e. co founder of YouTube?

albo




msg:3983444
 4:44 pm on Sep 3, 2009 (gmt 0)

There seem to be fine lines in morals/laws between the liabilities of sellers for the crimes of sellees.

In NM, it is a criminal offense to sell liquor to someone who is in danger of driving drunk. (This law arose in response to a drunken driver who crossed the median of an interstate at 85+mph and crashed head-on and killed a family of 6. Both the airline and a roadside liquor store had sold alcohol to a deeply intoxicated man.)

But as for censorship, by a web host, of my website (or censorship by an ISP or by GoOgle of my email), that's another thing. Or censorship...by a publisher of my book (in which I plagiarize or slander) by the publisher? As we used to say, in my hippy days... A man has to draw the line____somewhere.

Rugles




msg:3983499
 6:14 pm on Sep 3, 2009 (gmt 0)

Move your webhosting to Canada. That should do the trick, at least for now; and in general in Canadian law suing for damages is more complicated, and juries aren't that trigger happy.

And if you sue somebody and lose .. you must pay for their lawyer. Which puts a chill on all bogus lawsuits.

ergophobe




msg:3983545
 7:36 pm on Sep 3, 2009 (gmt 0)

Once notified of an infringement, however, it is their legal obligation to act.

Given a simple accusation of trademark infringement without a judgement, I'm having trouble seeing the difference between expecting a commercial space landlord to lock the doors of a retailer who leases store space and expecting an ISP to shut down the site of a retailer who leases server space.

I've never heard of the former being done in the entire history of trademark law (though I don't follow it closely).

Concrete, very specific analogy:

Let's assume I'm a bricks and mortar fashion retailer. Louis Vuiton believes that my advertisements violate their trademark and they notify the landlord of my building. Is the landlord obligated to change the locks and keep me off the premises until I respond to the allegations and then has 10-14 days to let me back in? What if that accusation comes from a non-verified source on December 1 at the height of the shopping season?

If not, then what's the difference?

Global Options:
 top home search open messages active posts  
 

Home / Forums Index / WebmasterWorld / Professional Webmaster Business Issues
rss feed

All trademarks and copyrights held by respective owners. Member comments are owned by the poster.
Home ¦ Free Tools ¦ Terms of Service ¦ Privacy Policy ¦ Report Problem ¦ About ¦ Library ¦ Newsletter
WebmasterWorld is a Developer Shed Community owned by Jim Boykin.
© Webmaster World 1996-2014 all rights reserved