DMCA Safe Harbor: Part One

There are few laws that affect bloggers more directly than the Digital Millennium Copyright Act (PDF) safe harbor provisions. Not only do bloggers use it to secure removal of their works when copied without permission, but many also take advantage of its protections to offer new services to their readers.

But the safe harbor provisions are also one of the least understood laws actively being used. Many do not understand exactly what the DMCA safe harbor protections do and what they protect protect. As such, they do not understand what their rights and obligations are under the law.

So we’re going to take a moment and analyze what the law actually says and how it applies to bloggers, both as content creators and as hosts, and look at how we can best use the law as it is written today.
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The Legal Risks of Blogging

A recent article in ABC News paints a fairly grim picture about the current state of blogging. According to the article, as well as the Media Law Resource Center, there have been 159 civil and criminal court actions taken against bloggers since 2004 with countless others threatened into silence before any kind of action was filed.

Though the number of actions taken are still very small compared to the number of bloggers writing (Technorati was tracking over 70 million blogs at its last report), the threat of legal action is enough to scare many bloggers into changing the way they write, removing content or otherwise altering their site.

The problem is that, even if the image of bloggers being sued is an exaggerated one, the image of bloggers being threatened with such suits is much less so. For every lawsuit that reaches trial, there are dozens that are settled and for every one that is settled there are likely hundreds that are threatened, but never filed.

This has helped to create a climate of fear, one that bloggers need to be prepared for.
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UK companies aren’t clear on new “fake blogging” laws

British companies which pretend to blog as ordinary members of the public, or post multiple positive reviews as if from consumers, are now breaking UK law, yet many don’t know anything about the new legislation, according to Brands2Life.

Its director, Gareth Thomas, said that, “Most people don’t know about this law,” adding, “there is a misconception that these devices are clever, but they can backfire.”

The new Consumer Protection from Unfair Trading Regulations legislation came into effect at the end of May 2008.

Drew Benvie, director at Hotwire, said, “This law change affects everyone in PR. If customers have any presence online, it’s definitely their business to know about it.”

(Via PR Week)

Legal Issues with Choosing a Host

Finding a new host is never easy.

First, one has to choose the kind of hosting and the plan that they need, something that is almost impossible with a new site. Second, they have to find a quality host at a reasonable price, which is also difficult because nearly all hosts have at least some negative reviews and some devout fans.

However, one area that often gets overlooked when picking a new host is the legal side of the relationship. Hosts and their clients have a complicated and somewhat delicate legal arrangement between and now two companies approach it exactly the same way.

Though no one enjoys reading the lengthy agreements we have to sign, there is actually some very important information in there, including the following items.

Country of Origin

One of the first things to look at when considering a host is the country it is located in as it determines the laws that it operates under.

Typically speaking, it is best to locate a host that is within your own country as the laws will be more familiar to you, they will be able to provide support in your native language and they will be the easiest to get in contact with.

If that is not practical (IE: There are no acceptable hosts within your country or most of your audience is oversears), selecting a host within the U.S. or EU are good choices as the legal climate there has been stable for a few years now and the rules are fairly standard.

However, more important than the actual country is being sure that you understand what you are getting into and that involves reading through the terms of service and acceptable use policies to be sure that nothing you are going to do will run afoul of their guidelines and result in your site being taken offline against your will.

Things to Look For

When you are going through these terms, be sure to look up these following items:

  1. Billing: Billing is one of the most common issues people have with their host. It is important to understand how much will you be charged? When will you be charged it? Is there a setup fee? How will you pay it? Is it automatic or invoiced? Understanding these issues will go a long to ensuring a good relationship with a host.
  2. Server Restrictions: In addition to understanding how much space and bandwidth you get, make a note of other restrictions on server use. For example, most shared hosts do not allow “always running” scripts such as chatrooms. Take special note for under what conditions your host can suspend your account, very useful for when you are experiencing a Digg or similar traffic rush.
  3. Content Restrictions: I typically try to avoid hosts that do not allow adult material. Though I have no intention of publishing pornography on any of my sites, the definition of adult content is subjective, even within the courtroom, and some articles I’ve written could be mistaken for pornography at first glance. Typically, it is best to have as few content restrictions as legally possible.
  4. Copyright/Trademark: Though laws such as the DMCA and the EDEC have largely standardized copyright enforcement by hosts, many still have their own policies and it is best to understand what they are and how they might impact you. Take special note of counter-notice procedures.
  5. How Responsibilities: Different hosts and even different accounts on the same host often have disparate responsibilities. Understand what your host is required to support, referring to how “managed” or “unmanaged” your service is. Also, see if there is an uptime guarantee and what happens if it is not met. Also, some hosts offer a guarantee for hardware swap-out times, see if the one you are considering does as well and what the penalty is for them not meeting the advertised time frame.
  6. Cancellation: At some point you will probably want to leave. How do you cancel your account? How much notice do you have to give? What happens if you cancel before your contract is up? Every host is different and many make it artificially hard to cancel. It is best to look at this closely before signing up.

Though it looks like a great deal of information to obtain, it should only take a few minutes to get it. Considering the amount of time it takes to find an acceptable host and the amount of headaches such research can save, it makes sense to take a few extra moments and do the research.

Taking a Pass

Most of the time, the information gleaned is just for one’s own knowledge. However, I’ve encountered many situations where one host’s terms of service make me take a pass on them in favor of someone else.

The important thing is to be honest about what you need and examine what is likely to go wrong in your relationship. Also, look at your site from the perspective of someone who is angry with you and seeking to shut you down through any means available, no matter how petty.

Determine in advance what you need and what your most likely sticking points are. Though no host will be perfect, you can find one that mitigates against most of the potential issues.

This may not help you avoid conflict, but it certainly can help you avoid catastrophe.


Though we like to think that the hosting terms of services and acceptable use policies are cookie-cutter and identical, as someone who reads them regularly, I can tell you for certain that they are not.

It is important to read these closely and understand the rules your hosting account will operate under because those rules don’t just impact you, but potentially all of your visitors.

Such legal issues are one of the least “fun” parts about picking a new host, it is one of the most important. Because even if a host is reliable and fast, your site can still go down due to conflicts with your provider and others on the Web.

It is far better to be prepared and be aware than leave it up to chance.

Seven Great Sites for Legal, Free Content

If you’re looking for content for your site but don’t want to create it yourself or pay money for it, there are a lot of options available to you. Whether you are looking for images, articles or multimedia, there are many sites on the Web that make available a library of work available for you to use.

If you know where to look for what you want and to make sure that your site complies with the licensing requirements put upon it, you’ll find that there are plenty of people eager have their work become a part of your blog.

To help with that, I have compiled a list of seven of my favorite sites for obtaining free, high-quality content for your site without any worries of copyright issues down the road.
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Has Your Blog Been Banned or Blocked?

I recently published How to Access Banned Blogs, and a friend asked me how would she know if her blog is banned by a country, government, Internet Provider, company, school, or otherwise. Good question.

On Monday, I’ll be publishing a feature article on how to find out if your blog is banned and offer some options to get your blog off a ban or blocked list, but what about you?

Has your blog been blocked or banned by a government, educational institute, corporation, or web filtering service or program? How did you find out? Did you find out why your blog was blocked? Were you unable to get your blog unblocked?

Share your story with us.

Assembling the Spam Puzzle

Fighting spam has proved to be a nearly impossible task.

The best and brightest minds of the legal and technical worlds have failed to come up with solutions to stem the flow of junk email, splogs or spam comments.

Every new law or technological advancement has just been an escalation in a never-ending arms race between the many who hate spam and the few that send it out.

To be certain, spam plays a much smaller part in our lives today than it did a few years ago. We rarely see spam in our inboxes, spam comments are largely filtered out and only search spam seems to work with any reliability, especially with blogs.

However, the junk content keeps flowing at an ever-increasing rate. More and more junk email gets sent out every year, comment spam is on the rise too.

We have managed to treat the symptoms, but not the illness. This is because we have been dealing with how spam mails us, one issue at a time rather than looking at the bigger picture.

It is time to take a look at the spam puzzle and how it all fits together.

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Creative Commons and Privacy

Last year, Virgin Mobile Australia decided to use Creative Commons-licensed images in an advertising campaign. The campaign, dubbed “Are You With Us Or What”, featured photographs taken from Flickr, which were overlayed with taglines and a plug for Virgin’s cell phone service.

While most of the photos were of car accidents, graveyards, Christmas decorations or other non-human subjects, one ad found itself at the center of a legal storm.

The ad in question featured Alison Chang flashing a peace sign. The photo, taken by Justin Wong, was licensed using Flickr’s “select a license” feature under a Creative Commons by attribution license, which allows commercial use.

The problem was that, while the photographer had allowed commercial use through his license (though he later claimed to be unclear about the terms), it only covered the copyright of the work itself. Chang nor her parents had signed a model release, meaning the use potentially violated her right to privacy.

The result is that her parents sued on her behalf in a case that is still ongoing.

So what went wrong and how can others avoid a similar misstep? The answer is actually fairly simple.
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When Fans and Artists Collide

Earlier this week, a fan of the British TV series Dr. Who was forced to take a portion of his site offline after receiving a cease and desist letter from the BBC. However, Mazzmatazz, the fan is question, was not posting clips onto YouTube or making pirated copies of DVDs, but rather, posting knitting patters to let other fans make their own Dr. Who characters.

In a similar, but much more famous case, J.K. Rowling has sued one of her fans, the author of the Harry Potter Lexicon site, in order to prevent a book from being published using information from her series.

These are just two examples of creators butting heads with their own fans over matters of copyright. Ever since the Internet made the fan site possible, it seems that copyright holders have struggled to find where to draw the line with their own fans and fans, for their part, have had difficulty finding just where that line is.

But how can such bloggers fan site creators avoid drawing the ire of those that they admire? What can copyright holders due to avoid needless clashing with their own fans? Sadly, copyright law is of little help in this area and the real key lies in making an honest attempt to resolve a very complicated matter. [Read more…]

Copyright and Twitter

Every time a new technology comes along that aides communication, copyright inevitably becomes an issue with it, at least to some degree. From piano rolls to radios to televisions to the Web, every great technology has shifted the copyright landscape and has had its course altered, at least in some way, by those protections.

Twitter is no different in that regard, whether it is just a fad or the beginnings of something larger, Twitter as a technology raises copyright questions that are not easy to answer. The microblogging service is difficult to fit into any of the current copyright paradigms and seems to challenge what many think about posting on the Web.

So what copyright issues, if any, might exist with Twitter? To answer that, I’m going to take a look at the service from various angles to see if any potential copyright conflicts await the service.

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