As promised, I’m following up my previous post on the DMCA- trying to make sense out of the madness, as I perceive it. So I asked Jonathan Bailey of Plagiarism Today a question regarding my main concern-:
Are 3rd parties like this allowed to write to a host and request such drastic action without going through some sort of formal procedures? Otherwise anyone can just do this as an act of sabotage?
Here is his answer to this-:
“The honest answer to your question is yes, no and maybe.
The DMCA itself only allows two groups of people to file a notice. The copyright holder or a “designated agent” to act on their behalf. That agent is usually an attorney that has a legally signed document declaring them to be an agent on file.
So yes, it is possible for a third party to file a notice- but only with a valid contract to do so. Being a designated copyright agent is a fairly big deal and not something you can assume you have.
The exception to the rule is if your site happens to be in the EU. The EU has a similar notice and takedown provision to the U.S. but there is no specific requirement as to who can file the notice. Theoretically at least, anyone, even a perfect stranger, can file the
That, potentially, makes situations like this dangerous in the EU. You and I can reach a pact to allow reuse of some of my work, someone else notice the infringement and then file a complaint with your host, getting the work removed. This hurts both of us.
The only way I know to guard against that is add a tag line saying that it is “used with permission from” and then give the site name.
Still, even that is no guarantee.
This is something that the EU is going to have to work out.”
For those of you with sites in the EU that this may concern, I followed up with another question to Jonathan-:
When you say “in the EU”- would that mean where the site is hosted or the location of the domain registrant? And doesn’t this get confused with hosting resellers being located outside the US, while the main server is in the United States?
To which he responded-:
“EU deals with the host. The domain registrant has nothing to do with it.
Ponder a scenario here. If a Russian plagiarizes an Australian author but uses a U.S. Web host, the Australian man would use a DMCA notice to get the work removed. Similarly, if the Russian chose a host located in the EU, the Australian would go through those procedures.
It’s a matter of where the data is stored physical and which country “owns” the server. It is interesting when you get to matters of collocation, which can put a single site across many different countries, but in those cases you focus on the main one.
ThePirateBay has used that rub to keep their site alive, despite multiple copyright threats.”
This answer from Jonathan far from put my mind at rest!!
The laws in the US need reviewing now and the EU has to attend to their chaotic interpretations even more urgently.
Watch this space.