Enforcing copyrights with unhelpful hosts

[diberry]

A website has copied one of my most popular pages. It's very obvious - their page is copyrighted 2011, and mine 2008. It's all very simple. I sent them a Cease & Desist (at the same time, I sent several others, all of which have taken down the offending material, which was submitted by a user), but they ignored it. So I filed a dupe content complaint with Google and contacted their host, HostGator.

HostGator's Terms and Conditions [hostgator.com] say:

""Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work... If you believe that your copyright or trademark is being infringed upon, please email [e-mail] with the information required. A list of required information may be found here [hostgator.com]. If the request is of a licensing issue, we may require further documentation."

But when you click to the "here" URL, you're informed you have to file a DCMA complaint by mail or fax, not email. Okay, fine, but:

"As with all legal notices, a copy of the notice may be made available to the public and sent to one or more third parties who may make it available to the public."

I've been back and forth with them for clarification, and what this actually means is that HostGator does absolutely nothing about copyright infringement except pass the DCMA complaint onto their client, who already ignored a Cease & Desist. Then, if their client wants to post my personal address, name, phone, etc., maliciously all over the internet, well, that sucks for me. Or if the client doesn't respond, that also sucks for me because apparently I would have no way of getting the client's personal information so I can start a suit.

Now, in the past, I've had hosts be happy to get a client to take down infringing material or, failing that, suspend the account to get their attention.

I'm going to confer with an intellectual property attorney to find out what my rights and HostGator's legal responsibilities REALLY are.

Have any of you had experiences like this in trying to enforce your copyright? Do you have any suggestions for me? Or do you want to hear more about how this turns out?

[johnmoose]

As I also write a lot of articles for my websites I am absolutely interested how this turns out for you. Do keep us informed. Thanks.

[outland88]

Plenty of times I've had the experience. Rarely does anybody publish anything.

Do as they ask and send the DMCA by mail/fax to their designated DMCA agent. Host Gator is in compliance with the law.

If they have Adsense on the site or utilize any type Google program send a DMCA to Google first. If the site appears in Google or any other search engine send it to them also.

[diberry]

I've notified Google. I note that *their* DCMA form promises your personal info will be removed before it's published (HostGator makes no such assurance). I also notified Google through Webmaster Tools.

I'm just not comfortable risking the publication of my personal info - it may be rare, but once something's on the net, you can't ever get rid of it. I'm definitely going to consult with a lawyer and see if there's not more I can do, and if not, have them write the letter so it's their contact info that ends up published thanks to HostGator's copyright-hostile policies.

[Tallon]

Thinking on this, it could be a sign of how google changes can even affect hosting companies. Imagine the rev $$ loss many companies are facing now due to all the DCMA complaints being filed since Panda was unleashed (because it appears scrapers are taking down legitimate sites).

Reading this, I get the impression that HostGator is making the choice to make it difficult for legal content owners to file complaints so they can stick with clients who are scraping rather than face a high loss of hosting clients. I'm interested in hearing what a lawyer has to say about this.

[tangor]

I'm interested in hearing what a lawyer has to say about this.

Don't expect any lawyers to chime in... :)

But it will take a lawyer to submit. And a lawyer ACTING AS YOUR AGENT for example.com website can file that DMCA notice for you and take all the heat should the respondent opt to publish (for the lawyer a golden advertisement) any contact info.

Unfortunately, lawyers cost money UP FRONT.

Google and the scrapers are pretty sure the effort of "little guys" is not there and will keep on truckin'.

[diberry]

I'm currently gathering responses from lawyers. From experience, I know that 5 different lawyers can give you 5 different and contradictory answers, so I want to get a consensus of opinions on HostGator's legal obligations before I post anything in here. And yes, it looks like I'll be filing DCMAs and hiring a lawyer to do it.

I'll keep you all posted. It would be helpful to just know what a host's responsibility is in these cases. Then if you have to hire a lawyer, so be it, but at least you know what you can expect from the process.

[diberry]

How irritating. I filed the DCMA complaints with Google, with their web page assuring me my "personal information" would not be shared on Chilling Effects. But I went into the SERPs today and found a nice big notice about two results having been removed, and how you could read the notice at Chilling Effects, and there's my full name at the top.

This is a problem because I blog under my real name on a totally different topic, and it's sort of a, well, branding issue. My real name is associated with expertise and experience in a particular field, and here I am also owning these totally different sorts of websites. It could confuse readers. This is exactly what I was hoping to avoid with HostGator.

Word to the wise: DCMA is intended only for businesses and lawyers. If a little guy wants to use it, be prepared to have to share at least your real name and maybe more.

From now on, I'm just doing the dupe content thing via Webmaster Tools and waiting patiently. Google always removes the dupes eventually. Geez.

[diberry]

ChillingEffects.org, the clearinghouse for the DCMAs, was kind enough to replace my legal name with the domain name, and instructed me that putting the domain name in the "company name" field on any future complaints would cause it to show up as the name. Good to know!

Now I have to consider: I've gotten these clowns removed from Google. Do I really want to hire a lawyer to write to HostGator, and then possibly have to sue the site owners and/or HostGator? Lot of trouble and expense, when my main concern was Google not getting confused about who originally wrote my webpage.

BTW, I haven't had time to get more lawyer opinions yet, but the one I spoke to said the host has an obligation to pass on the DCMA complaint in a timely fashion, and if the other site owner does nothing, the host IS obligated to take it down themselves. So HostGator was misleading when they indicated to me that they just pass it onto the other site owner and then we duke it out - if the other site owner isn't responsive, it's HostGator's problem after all, and they do have legal obligations.

But I do intend to get more feedback on this, since different lawyers sometimes interpret the law differently. Will keep you posted.

[outland88]

and if the other site owner does nothing, the host IS obligated to take it down themselves

Incorrect. The host is not required to take down anything and many don’t unless they are seeking “safe harbor”. Safe harbor allows the host to escape legal damages for collusion in the matter. It is wise to seek “safe harbor” because it’s not rational to risk a lawsuit for the small sum normally involved with hosting.

If you take a look at the Who-Is of who you’re talking about the mentioned server network is ultra-antsy about having hard copy for evidence. They do this to reduce their culpability in the matter in case you wrongfully accuse somebody or the offenders vanish. Host Gator appears to be using one of their old forms. Bottom line Host Gator is in full compliance with the law and you have no lawsuit against them. You have established nothing they are in violation of. If you listen carefully to yourself it sounds like you want to point the finger at somebody but want to camouflage or substantially reduce the risks in doing so. Basically you can’t really have one without the other in a legal process.

[diberry]

Outland88, that quote you cited is reporting what a lawyer told me in consultation, not my personal views. Or didn't you read my comment before jumping in to lambast me? Who's looking kind of silly now? :)