Dreamhost have refused my request (under the DMCA) to be correctly identified as the author of content copied from my blog. I am publishing this so that anyone else who deals with them will know what to expect. Also if someone wishes to sue Dreamhost in regard to content that they host this may help demonstrate a pattern of behaviour.
The situation is quite obviously the result of a broken script used by a splogger that doesn’t correctly match author names with articles. The fact that the official Dreamhost policy is to disregard the requirement that the author(s) of copyright material be correctly identified is reprehensible. It also seems likely to open them to the risk of legal action. If you know how to contact a director of Dreamhost then please give them a link to this post and explain the risks to them.
For anyone who wants the detail the messages are below.
Here is my first message of complaint:
Date: Sun, 30 Sep 2007 13:14:29 +1000
Subject: DMCA take-down request
From: Russell Coker
To: turbojuegos@gmail.com, abuse@dreamhost.com, netops@dreamhost.com
[1] http://etbe.coker.com.au/about/
[2] http://creativecommons.org/licenses/by-nc-sa/3.0/
[3] http://etbe.coker.com.au/2007/09/28/swap-space/
[4] http://www.themepassion.com/?p=10577
URL [1] has the license conditions for the content on my blog, URL [2] is
linked from URL [1] and clearly states that content must be correctly
attributed. URL [3] contains original material that I wrote which is
licensed according to [1] and [2]. URL [4] contains a copy of that content
which violates my license by attributing it to “Mike Nizza”.
I demand that I be correctly attributed as the author of the text in question
or that the page in reference [4] be taken down. I have included the
dreamhost people in this message, if the owner of the site themepassion.com
does not act on this request I demand that Dreamhost take the site down.
I have a good faith belief that use of the copyrighted materials described
above on the infringing web pages is not authorized by my registered
copyright and by the law. I swear, under penalty of perjury, that the
information in the notification is accurate and that I am the copyright owner
of an exclusive right that is infringed.
Here is my second message of complaint (the first only received a response from a Dreamhost bot):
Date: Sun, 7 Oct 2007 17:06:38 +1000
Subject: DMCA – no safe harbour for Dreamhost
From: Russell Coker
To: turbojuegos@gmail.com, abuse-replies@dreamhost.com
It is more than one week since I sent the below message. The infringing
content has not been taken down or modified to correctly describe the author.
Dreamhost I request that you remove www.themepassion.com from your network at
your earliest opportunity. Failure to do so removes the OCILLA safe-harbour
provisions and you will be held liable for infringement.
Here is the message from a human where they explicitly reject my request to be attributed as the author of my own work. I do not accept that a link to my web site is adequate to counter the false attribution of the article.
Date: Wed, 10 Oct 2007 11:27:03 -0700 (PDT)
Subject: Re: DMCA – no safe harbour for Dreamhost
From: DreamHost Abuse
To: russell@coker.com.au
Hello –
Thanks for writing.
After reviewing your complaint we have decided to reject it based on the likelihood of the content being covered by Fair Use, particularly because:
a) Your work is not reproduced in whole, but rather as very a small excerpt (45 words, 235 characters) in proportion to the whole located on your website (930 words / 5010 characters).
b) The site in question links directly to your full article, promoting your article with the text “Read the rest of this great post *here*”, where *here* is a link to your website.
Despite the Creative Commons license of your blog, as you’ve noted at http://etbe.coker.com.au/about/ , the legal language of CC directly notes that it does not trump Fair Use, or other portions of copyright law:
http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode
“2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.”
—
– Karl F., Abuse Coordinator
– DreamHost Web Hosting – http://www.dreamhost.com/
Finally here’s a copy of the text on the offending web site:
Mike Nizza wrote an interesting post today!.
Here’s a quick excerpt
There is a wide-spread myth that swap space should be twice the size of RAM. This might have provided some benefit when 16M of RAM was a lot and disks had average access times of 20ms. Now disks can have average access times less than …
Read the rest of this great post here
Interestingly, I had exactly the opposite experience with dreamhost – we had them pull stuff behind our backs because someone sent an (illegitimate) DMCA request, in a shoot-first-ask-questions-later manner. And then, when more was filed by the same attacker, they invoked the 30 day termination clause because having a customer that someone files requests against makes them too expensive.
Fair Use/Fair Dealing doesn’t negate the requirement that the author is identified; that comes under moral rights, required by the Berne Convention. Moral rights apply even if copyright is transferred (and in certain jurisdictions, infringement of moral rights can adversely affect the chances of anyone claiming fair dealing as a defence).
Here’s a little trick that I learned from the Church of Scientology. Don’t send the DMCA takedown to the content site. Send it to Google, demanding that the site be removed from the index, which is the whole reason that people do spam blogs to start with.
By the way, Karl F. is all wet on the fair use doctrine. The amount used is only one of the fair use tests, and the others all go against them. Spam blogs aren’t even transformative.
It would be interesting to see if a judge would actually narrow the fair use defense in the case of a CC-licensed work, since it would have been easier to use an excerpt of the work with permission.
This might be something to do in a similar vein as Don. The site uses Google ads. This use maybe a violation of the TOS, thus it would also affect the reason for the blogs existance.
Hope it helps.
K