Network Solutions Confused About The DMCA

Network Solutions Confused About The DMCA: "Last week we wrote about how Microsoft abused the DMCA to force Cryptome offline via Network Solutions. Since then, there's been some interesting scrambling by all parties involved. Mircorosft claimed that it never meant to take Cryptome down entirely, just the one document (though, it no longer is asking for it to be taken down). But that doesn't make much sense, because Network Solutions only had the ability to take down the whole site, not pieces of content. Either way, what really confused us was Network Solutions response to the DMCA takedown, which was that it waited until Cryptome filed a counternotice to take down the site. That's not how the DMCA works.



Yet, in a blog post sent over by Achura, Network Solutions tries to provide a 'layperson's guide' to the DMCA. The only problem is that they get it wrong.



First, Network Solutions seems to think that the DMCA provides for a 'notice-and-notice' system of dealing with takedowns, whereby it needs to first notify the user and wait for them to respond. Unfortunately, the DMCA does not follow such a procedure. It would be much better if it did. However, the DMCA is a 'notice-and-takedown' setup, whereby the service provider who receives the notice needs to first take down the content, if it wishes to retain its safe harbor protections. It can choose not to take the content down (though, that rarely happens), but it risks losing the safe harbor protections. As the law itself clearly states:

upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So NetSol is wrong to claim that they first need to notify the user and wait for the response.



Second, NetSol is then wrong in how it responds to a counternotice from the user. It claims:

If the customer challenges the Notice by submitting a Counter Notification that complies with the DMCA, the Host is required to disable access to the allegedly infringing site for a period of 'not less than 10 business days, nor [sic] more than 14 business days' (the 'Challenge Time Period').

Again, this appears to be incorrect. If it had been following the DMCA, it should have already taken the content down to retain safe harbors. It makes no sense to say once the counternotice is sent then you take down the content. Instead, the no less than 10 days/no more than 14 days refers to how much time the service provider is supposed to wait before putting the content back that it already took down. Of course, given that NetSol was confused about the notice-and-takedown process, you could see why it felt the need to take the content down after the counternotice -- because that's the point that it realizes it was legally supposed to take the content down earlier.

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