BoingBoing, Web Hosting and the First Amendment
MSNBC Host Rachel Maddow
I want to share with all of you a letter that I sent to The Rachel Maddow Show this weekend. She had Xeni Jardin on, who writes for BoingBoing.net, which I love. My big problem with the segment is that it left viewers with an overall impression that the DMCA was anti-free speech and that people should host offshore. I don’t agree, and to be fair I don’t know if Xeni does either, as it wasn’t even the primary focus of her appearance and they only discussed it briefly and in too little detail.
But our industry doesn’t land in the news all that often, and to appear in this context is what some would refer to as an ‘epic fail’. I understand that given the short time available on a news segment like that to explain our industry, the laws that govern it and the different types of players within it, a lot was left unexplained. But that’s exactly why I needed to take the opportunity to set the record straight.
Video and more after the jump.
Here’s a link to the segment I am commenting on:
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It’s long by design – since I was trying to make a case for this being a complex issue that needs a detailed explanation I felt it my duty to be thorough. To make it easier to digest I highlighted a few key quotes. If you’d like you can start there and go back and read the whole thing if those strike your fancy.
An Open Letter To Rachel Maddow On Web Hosting In America
On Friday, October 9th’s edition of The Rachel Maddow Show, you had BoingBoing.net blogger Xeni Jardin on your program to discuss her run-in with Ralph Lauren’s lawyers regarding an ad referred to as a ‘Photoshop disaster’. I like Xeni Jardin and I love BoingBoing.net, but I took great exception to her comments about the Digital Millennium Copyright Act (DMCA) and how hosting in the United States works.
The heart of your story seemed to be exposing what appeared to be a strategy of legal intimidation on the part of Ralph Lauren after they were called out on ridiculously modifying a model’s physique in an ad. I applaud you and Xeni Jardin for that service. However, along the way you provided a national stage for some very wrong information about how the DMCA works, and some dangerous recommendations to the blogosphere about how and where they should host.
As Chief Operating Officer of a hosting provider that focuses on small to medium businesses, which is what many popular blogs are, I’ve personally handled over 500 DMCA incidents without a single one going to court – and I’ve done it without caving in to intimidation tactics used by some people who attempt to use DMCA takedown procedures as a way to curtail free speech.
My experience is not unique. The first amendment is alive and well in the American hosting industry. There are a lot of good hosting providers out there standing by their clients and standing up for what is right. Heck, for better or worse this industry brought you porn on demand and The Drudge Report. We know controversy and don’t cower in the face of it.
Ms. Jardin calling Ralph Lauren to task is a completely justified, humanist thing to do. Her thesis is sound and her efforts to protect the post in question under’ fair use’ justified. The blogging community should provide a public service like that, and I commend her for her good work. And Ms. Jardin isn’t wrong about free speech being curtailed – just about who is doing it and why. Her point deserves to be discussed, but not at the expense of criticizing the whole U.S. based industry unfairly, which is what ultimately occurred on your show.
In particular, her recommendations to bloggers on hosting “offshore” in an effort to circumvent the law were unfit for your otherwise esteemed show. I was surprised that Ms. Jardin was permitted to voice the thesis, unchallenged, that BoingBoing.net was allowed to ignore Ralph Lauren’s complaints against them because they receive hosting in Canada, and that in order to avoid potential legal issues bloggers should “consider hosting your blog offshore.” In one simple comment, Ms. Jardin lumped the blogosphere in with child pornographers, spammers and other producers of willfully illegal content. The blogging community, and BoingBoing.net itself, deserves better than to be placed in such company.
Ms. Jardin stated, perhaps more fairly, that “most free hosts” just shut down content that receives a complaint and never stand up to any challenge. Even if that’s true she shouldn’t criticize this entire nation’s hosting industry for the supposed actions and policies of places like Blogspot and Youtube. Their actions reflect a “path of least resistance” policy on the part of people who provide free service, not an indictment of DMCA. The paid hosting community in America doesn’t succumb to such unnecessary laziness. We are generally first amendment crusaders.
Companies like ours are busy protecting free speech in the American hosting industry every day. If you can’t get those kinds of protections for free that’s another issue altogether, but it is irresponsible to blame a good law (the DMCA) or an industry for what ultimately amounts to free hosts giving you what you pay for.
I will defend the DMCA as a good law with anybody who cares to discuss it. The DMCA has been an incredibly successful piece of legislation, understanding the needs of an industry better than most bills that focus on technology. Title II of the DMCA bill includes a provision called Safe Harbor, which basically states that a host is not required to proactively monitor the content on its network, and only needs to act on claims when notified that potential illegal activity is occurring on its network.
This Safe Harbor provision makes it possible for hosts to operate in America, shielding hosts from needing to play Internet cop to every website on its network. It would be simply impossible for any company, American-based or otherwise, to keep an eye on every piece of writing and every image placed on its network to ensure that it appeared to meet that company’s understanding of lawfulness. Safe Harbor protects hosts from that, and makes it so that hosts don’t get dragged unfairly into lawsuits where they played no more a part than the power company did.
When a hosting provider receives a DMCA notification, we don’t need to just shut down the content. That’s ridiculous. A responsible host opens a dialogue with their customer and arrives at a mutually agreed upon path forward whenever possible. A responsible host doesn’t curtail free speech, and takes the time to ascertain the difference between legal pressure and actual unlawful activity.
So there’s a difference between what’s required by law, which is reasonable, and the decisions of individual companies. Moving “offshore” isn’t the answer. The answer is either to pressure U.S. hosts to be more free-speech friendly, or to find responsible hosts who already are. Moving “offshore” to escape first amendment curtailing laws that don’t actually exist isn’t a sensible alternative.
Moreover, Ms. Jardin seemed to imply that in Canada copyright laws don’t apply, and Canadian hosts will allow you to ignore U.S. based complaints. This is not true. The international hosting community is slowly catching up to the DMCA, and places like Canada, with its copyright reform bill (C-61) are going to soon have DMCA-style legislation in place – because those laws are good laws and people recognize their effectiveness.
Locations that don’t have those kinds of laws, like the Netherlands, are harmed by their overall lack of regulation. The Netherlands has one of the most broadband-rich communities on earth, but because illegal offshore activities gravitate towards it, much of the rest of the Internet community would like to pretty much ignore it, blacklist or blackhole it altogether. The Netherlands made great strides to be forward-thinking and technologically advanced, but undermined it because they aren’t regulated. They are now such major sources of suspect and potentially illegal activity (such as warez and illegal torrent distribution) that it threatens to overtake the network in its entirety.
Going “offshore” until one country gets its act together and then moving to the next until all potentially controversial material on the Internet is corralled into one Netherlands-style law-free zone doesn’t seem like the direction that responsible blogging should progress. I implore the very important blogging industry to not be led down down a path of running from the law, and from country to country, as the International community brings its laws up to the high level of the DMCA.
Your guest was given an opportunity to provide an unchecked argument on your show that harms the US hosting industry and maligns our very real first amendment efforts with misinformation and mischaracterization. I am writing to you because I know that you make great efforts to correct the record when warranted, and in this case I hope you will do so.
So what do you think? Was I on the mark? Am I overreacting? I’d love to hear your feedback.
All the best,
Christian
I’m not exactly sure what legislation you see doing this. Nothing like that seems to have been proposed by anybody anywhere. And I just don’t see Internet legislation going that way in America, because frankly the American people wouldn’t stand for it. Try to make private what is public and you’d see riots in the streets. You’d see revolt, some big companies and the politicians who sided with them with egg on their faces, and viable alternatives rising up quickly to strip away any power gained by companies seen as trying to gain unfair advantage over Internet infrastructure.
There are people out there like Cory Doctorow who foresee huge conspiracies about National or corporate takeovers of the Internet. I just don’t see that as being realistic. I think their conspiracy theories are useful to some extent, because fear of the possibility of the further corporatization of the Internet does help keep it from happening, but at the end of the day it simply won’t. We’re a country who often lets unpopular things happen because we’re not mobilized en masse against it, but when we are we have an unstoppable power. It’s why there’s no military draft in America, and it’s why the Internet will never be swallowed whole by ‘big business’ or the US Government.
I firmly believe that America does a good job right now upholding the rights of free speech and open access, and I just dont see that changing for the worse. I can’t speak for the UK, but I can say ‘don’t believe the hype’ when it comes to Internet legislation in America.
This will have a number of effects… firstly it’ll limit enterprise on the internet to big business, secondly it’ll end coffee shop culture (no more free internet anywhere, period, unless you provide proof of ID when you get your WEP key).
In the UK this is made vastly worse by the internet surveillance they are pushing through – disconnection without trial + mass surveillance is a very efficient state censorship mechanism.
Christian, Thanks for taking the time to respond. I believe you. There probably are US webhosts that respond intelligently to these DMCA related issues and don’t treat their clients like a hot potato like Blogspot does. I kind of lumped all of you in with Blogspot because, from my perspective as a client (non-paying one, too) I can’t tell the difference and these takedown orders really make me feel threatened.
I blame the DMCA because it places web hosts, like yourself, in the awkward position of having to suddenly become copyright lawyers in the midst of running a web hosting service. It’s understandable if many hosts err on the side of caution because it takes them completely out of their field of expertise and confronts them with the dreaded consequences of a potential lawsuit which could make the loss of a single customer look trivial. Customers are normally assets, but a DMCA takedown order can quickly turn any one of them into a liability.
I’ve found a Canadian host. If Benjamin Franklin was alive today, I think he’d be doing all his publishing from a Canadian web server too. I’m glad, however that ServInt customers don’t have to run for the border like I have.
Well, here’s the thing – my goal isn’t to promote my direct competitors, only to spread the word that there are people who handle these things responsibly for their clients and to highlight that we put ourselves at the top of that list. Why should I need to mention any others when I am telling you that ServInt handles these issues responsibly, and that we’re not alone.
I still think you’re looking for the wrong thing. You see the DMCA as an inherently bad thing, and you’re looking to Canadian hosts who say they don’t follow it. Well no, they wouldn’t, they’d follow Copyright Reform Bill C-61 instead. They have laws in Canada too and they need to follow them there just like we do here. If you’re looking for a U.S. host or a Canadian one who is willing to ignore the law completely then you’re looking for a fundamentally irresponsible host and I think that’s a bad business decision. What you want is a host, no matter where they are based, who won’t ‘shoot first and ask questions later’ and who doesn’t try to be judge, jury and executioner versus its own clients when it gets a complaint. You get that when you pay for good commercial hosting. You don’t get that from a place like Blogspot but why should you? Why would they have a vested interest in protecting your rights to free speech? A good commercial host is like a business partner, who DOES have those interests in seeing you succeed.
But that only works to a point no matter where you go. Unless you really do want to host on the ‘bulletproof’ fringes along with the spammers and child pornographers, any responsible host is going to keep you from doing illegal things on their network. The difference is that with a host like ServInt if we get a complaint we don’t automatically assume you’re guilty. And we assume it’s worth our time to look into it. You don’t need to go offshore to find that.
You know, if your goal is to stand up for the better members of the US web hosting industry and keep bloggers from moving to Canada like BoingBoing has to avoid DMCA harassment, you need to come up with a better response than “I know there are plenty”.
I’ve found several web hosts in Canada who advertise on their home pages that they offer exemption from both the DMCA and the Patriot Act. I’m just looking for a similar kind of policy statement or some sort of indication from US hosts.
My bad experience was with Blogspot (Blogger). A free host, yes, but a very big free host and one operated by Google who surely has more resources than smaller hosts do to deal with fraudulent and harassing DMCA compliants. But I suspect that the DMCA is too much for even the biggest US based hosts.
But then, why should web hosts care about protecting bloggers when they’re only a small fraction of their total business? Perhaps blogging clients like them really do need a special kind of hosting package that takes into account the extra demands that the DMCA puts on their web hosts? A kind of “legal bandwidth” fee? The same as some web hosts charge for other kinds of help and troubleshooting?
Interesting question. Who are the others? Honestly, the others tend to be the more established commercial hosting providers. The smaller hosts don’t tend to know any better and the free ones don’t care and treat you like you’re not worth their time. There are a handful of reputable commercial webhosters, though, who are willing to treat your business like a BUSINESS. That doesn’t mean letting you get away with things that are indeed illegal, but it does mean opening a dialogue with you, giving you our impression of the law as it pertains to the complaint you received, and going over your options and choices – which includes in appropriate circumstances leaving the content up that is being complained about. I am interested to hear whether the bad experiences you have had were with established, commercial hosts like ServInt or with the incredible number of free or fly-by-night hosters out there. I don’t want to list the other top hosts out there and potentially show endorsement for a competitor, but I know there are plenty who handle things responsibly like we do. Have you explored hosts in ServInt’s corner of the industry?
“There are a lot of good hosting providers out there standing by their clients and standing up for what is right.”
Who?
Of course, I assume you ServInt is one of those good hosts, but who are the others? As a blogger, my experience so far (limited to Blogger) makes me think that free speech is not important to web hosts. I’m willing to pay (and I have paid hosting in addition to free Blogger hosting) for a host that will not allow themself to be used as a pawn in the DMCA-masked censorship game but after many hours of searching can’t find a single one with a reputation for having any backbone in protecting the right to free speech of their clients (except for BoingBoing’s, but maybe BoingBoing gets more respect than the little guys do?)
Where can I host a visual art blog that engages is serious criticism and commentary and observes the fair use provisions of the copyright act that won’t get censored by it’s webhost everytime some disgruntled reader files a ridiculous claim of copyright infringement in retaliation for my opinions?
I need some help.