We often criticize DMCA takedown abuse here at EFF, but last week’s Cryptome snafu highlights another facet of the problem: how a DMCA takedown for one item can result in the removal of lots of lawful material.
To recap, Cryptome posted Microsoft’s global criminal compliance manual. Microsoft sent a DMCA takedown notice to Cryptome’s domain name registrar and web hosting provider, Network Solutions, alleging that the post infringed copyright. Under the DMCA, a web hosting provider is protected from copyright infringement liability if, among other things, it “expeditiously” disables access to material properly identified in a DMCA takedown notice. Network Solutions asked Cryptome to remove the Microsoft compliance manual. Cryptome refused explaining that the document was posted in order to help the public better understand Microsoft’s practices, and followed up with a DMCA counternotice. Network Solutions promptly shut down the entire Cryptome website. Thus, a complaint about a single document caused significant collateral damage to the perfectly legal material on Cryptome.
This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome’s beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was protected by the fair use doctrine). Because Network Solutions wasn’t willing to take that small risk, a whole lot of speech was temporarily disappeared.
We’ve recently seen the same scenario with music bloggers, who may have their entire sites taken down as a result of complaints about a few links to music they’re reviewing.
And sometimes it’s not even enough to find a courageous hosting provider. Last year a takedown notice targeting a single site parodying the U.S. Chamber of Commerce resulted in a takedown of the websites of over 300 activist organizations hosted by MayFirst/PeopleLink. The Chamber of Commerce went “upstream,” targeting one of MayFirst’s upstream service providers, Hurricane Electric. When MayFirst pushed back, Hurricane shut off service, thus pulling the plug on unrelated websites, email and other online tools.
In all of these cases, copyright owners reach out to a “weak link,” the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit—even if the service provider knows it will win—is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of “innocent bystander” customers.
This unfortunate outcome is particularly ironic because Congress gave service providers protections in the DMCA. Service providers who care about free speech have better options:
- Remember, if your only relationship to the material targeted is that you provide connectivity to a downstream service, you should qualify for the 512(a) safe harbor, and, therefore don’t have an obligation to take the material down.
- Remember also that you don’t need the safe harbor if the material is a non-infringing fair use. In clear cases, you can bypass DMCA procedures.
- If thinking about fair use doesn’t make business sense, or you’re not sure, keep in mind that the DMCA requires only that you act “expeditiously” to respond to a takedown notice. Courts have found that providers should take down material within a few days of receiving a notice. So if you realize complying with a takedown notice will result in taking down much more material than the notice identifies, take the time to notify the person who sent the notice about the collateral damage it may cause. They may elect to withdraw it, especially where they are likely to face public criticism for causing an overbroad takedown.
- Give your customer a chance to re-jigger their service to avoid such collateral damage.
- Be sure to offer customers a clear counter-notice procedure—the DMCA provides protection for service providers that restore content in response to counter-notices.
Customers who also care about free speech should vote with their wallets and look for providers who will commit to following these suggestions. The safe harbors were supposed to help protect free speech, and they often do—but only if copyright owners, service providers, and internet users follow their common sense as well their business sense.









Most people are at least cursorily familiar with the concept of the circadian rhythm. For those who aren’t, the circadian rhythm refers to our internal, approximately 24-hour cycle of biochemical, physiological, and behavioral processes. Every living thing, from fungus to bacteria to plant to animal, has a circadian rhythm. External cues called zeitgebers (what a great word, huh?) help synchronize or alter our rhythms; they include temperature, nutrition, meal timing, social interactions pharmacological interventions (medicines, drugs), and, most prominently, the light/dark cycle of the earth.
Other sites also received tantalizing teaser images in a similar vein, which, when you notice the iPhone-like selector control at the bottom of the images, gives a pretty good indication that all are from the same series and further evidence of a Mac connection. 


Finally,
Additional evidence for the introduction of some kind of Mac version of Steam can be found in the inclusion of Mac elements in the latest beta builds of the game marketplace software. For Mac users who’ve maybe shut out all gaming news out of bitterness or jealousy, Steam is Valve’s digital game distribution software for the PC. It also provides digital rights management (DRM) services for developers, and multiplayer services for users. So far, only 