How are you guys (and gals) handling mp3 issues on your servers?

Allowed? Disallowed? Auto-delete? Manual delete? With customer notice? Without?

And slightly related, is it legal to delete a customer file you feel is inappropriate or don't want on your server? (Irregardless of what your TOS states. Sometimes hosts place items in their TOS to frighten, even though not practical/legal)

I would really appreciate the input.

Signed,

Flustered, yet Determined

I allow mp3's....BUT, in my case, i know the a guy that owns a recording company, and he's in his own band...so i allow their mp3's because i know they own the songs and the copyrights to them. I would only allow mp3's when they can prove to me they made the song and own the copyrights to them. Under no circumstances would i allow illegal mp3's, or anything else illegal, or still going through the courts to determine the legality. I would manually delete, and then notify.

If the file is not illegal, or against your TOS, i don't think you should delete it. But that is tricky...is it a personal opinion that it's offensive, or is it morally questionable? If it is illegal, and you just forgot to state that particular thing in your TOS, then you can delete it.

Hmmm....but now we move into a different issue:

A host one day decides to scan his drive for mp3s...he discovers that client joe.com has about 12.

Is it okay for the host to play/listen to these files to determine if it is illegal? [In my case, I just saw mp3 and freaked...I know this particular client is not part of a band or other musical group.] I went to the site through normal channels and couldn't find references to the mp3s on any of the pages, but I know they are in his directory.

We allow any type of material but scan for illegal stuff on a weekly / daily basis depending if we feel we have some abuser.

any known copyrighted mp3 are asked to be deleted, after the site has been temporarily suspended (the same apply to warez)

If we find copyrighted material several times the account is then terminated. Our words are: if it's legal, go for it. Else, go away :)

Im a little confused on what the problem is, why dont you just email your customer and give him 24 hours to remove the material and THEN delete it. Instead of losing a customer, and possibly facing lawsuits???

Not unless you stated on the TOS that you will immediately delete the illegal files.

They should have known not to put it there in the first place.

I guess I am perplexed at trying to determine if the file is illegal or not...and want to find out legally.

How do I know if it is Cher's latest, or his daughter singing "Happy Birthday" to grandma 3,000 miles away.

I don't want to invade my client's space, but at the same time, I don't want to have to appear in front of Judge Judy because of him.

I guess I could always write and ask (and to reaffirm the policy).

Micheal... the best way is to tell them you have noticed mp3 files on their directory space (you are allowed to scan their directories, remember they are on YOUR server) and tell them that you don'T allow copyrighted material and expect them to remove it right away.
if you are unsure, ask if it is... just the fact that you find out they have it will usually make them react quickly and remove it.

State the laws regarding copyrighted materials etc.

You can go into their account and check the file out yourself, you have the right to do that, because you are legally responsible for the files on your server, not them.

Well, technically, you're not responsible unless you know about it and take no action (assuming for the moment that they are, in fact, illegal). However, you do have the right to examine files that reside on a server which you lease or own to determine if any laws are being broken. Since most hosts have, in their AUP, a list of what is acceptable/unacceptable content, it presumes the right to review the files from time to time if there are any questions about the appropriate nature of them.

I see it as similar to a landlord/tenant relationship. A landlord has the right to enter a tenant's apartment, but not to disturb anything belonging to the tenant. If the landlord sees something suspicious or illegal, s/he doesn't have the right to remove it but only to take other action. In a Web host's case, that would be asking the client to remove the suspicious files and/or suspending the account.

It's a good question for that lawyer-type who lurks here occasionally.

[Edited by alchiba on 09-28-2000 at 11:32 PM]

You as a web host have the right to refuse service to anyone at anytime for any reason as long as it is not based on race, sex, ethnicity etc.

-Brendan
support@hostrocket.com

Annette's right. The host is not legally responsible for the content of its customers. This has been tested in cases involving AOL.

However, most hosts will remove illegal material, including copyright violations. Not being responsible doesn't mean that they might not be named in a suit anyway. That aside, it's a helpful and cooperative move to delete such material. I've had one trademark trespass and 5 or 6 copyright infringements and the hosts have all removed the stolen material with no legal action being required.

Ironically and hypocritically, the last such case was a law school in Singapore. They should know better. That's what I told the dean of students (I let a few people at the school know about that cheating and stealing student).

There's a difference between legal obligation and ethical considerations. A host should have a clearly written AUP/TOS, and many do. In the case of material like MP3s, unless they know some to be illegal, they should communicate with their customer before removing any. Legal or not, I consider it unethical and wrong for them to remove material that they merely suspect may not be proper.

Although I can't give legal advice on bulletin boards, I can at least tell you a couple of general principles. Under the Digital Millennium Copyright Act, IF a host registers with the copyright office, and provides certain information in its terms of service, it is immune from liability for contributory copyright infringement IF the host removes possibly infringing material upon good-faith notification of a third party that the material infringes. If you don't elect to do the stuff outlined above, you COULD be liable for contributory infringement under certain circumstances.

As I said above, this does not constitute legal advice; it should spur you to consider this issue, however, and perhaps to seek legal advice.

Best regards.

-- Jon

[Edited by iBusinessLawyer on 09-29-2000 at 01:19 AM]

How does one define a illegal mp3? I could rip a CD and add a lil more blank space, or a lil glitch during the ripping in the song. Something like Dj mixing but not that. Would that be illegal to host? A normal person would not be able to make out the difference until he is absolutely looking for it. Would this be considered illegal material, or no?

For the Ibusinesslawyer...

What is it that the host would register with the copyrite office about? Is it to state that he will support the rights of the legal owners, and delete any offending material upon reaization of it on his servers, or am I missing the point of the host registering with the office?


Thak you,
Tim L

For Kunal - You are infringing copyright laws if you sample more than x seconds of a song. I think its something like 16 seconds, but not sure. I can remember a case where a dance act brought out a tune with a sample of another tune in it, and they were done because the sample was too long.

Originally posted by iBusinessLawyer
As I said above, this does not constitute legal advice; it should spur you to consider this issue, however, and perhaps to seek legal advice.

OK then, in the spirit of general principles. . . Is it generally permissible for a (U.S.-based) host to examine the content of a client's directory and summarily delete anything the host considers offensive or illegal without telling the client beforehand?

Permissible? Yes - within the bounds of protecting intellectual interests, and according to the terms of the host's AUP, which generally has language along those lines. Courteous? Not really.

Courteous would be to inform the customer that you have reason to believe that they have broken the AUP, and asking them to provide proof (i.e. they own copyright) to the material. At least it gives them a chance to have their say in the matter.

Originally posted by inwks
For Kunal - You are infringing copyright laws if you sample more than x seconds of a song. I think its something like 16 seconds, but not sure. I can remember a case where a dance act brought out a tune with a sample of another tune in it, and they were done because the sample was too long.

Hmmm.. thanx :)

So, I e-mailed the client and he has assured me that it was merely a 'Happy Birthday to Grandma' thing...Muzak (sp?)

I will save his e-mail to prove (if ever needed) my good faith efforts to keep the content on my server legal(whether I own the ocntent or not).

Thanks everyone for the excellent discussion.

To add to what iBusinessLawyer said, web hosters can be held liable for what their clients put on their servers, whether the web hosting company knows about it or not. The way the courts see it if the company knows about the offending material and doesn't do anything about it then they are liable. If the company doesn't know anything about the offending material and takes no action then they are liable also because the company has the duty to know what is on their servers and to take action against it. This would apply to any copyrighted materials but would really get you in a bind if kiddie porn was found on your server.

I would suggest that you scan your servers well and often and then if you find any offending material either immediately terminate the account or suspend it pending a timely explination from the client and an investigation by yourself to verify the clients explination. Suspending may sound harsh but you don't have to worry about restoring a legitimate file in the future. It also shows good faith to a copyright holder or law enforcement agency. Terminate the account if the client can't explain it or lies to you. They aren't worth it. Also modify your TOS to make sure your clients know that you will be scanning and that you will suspend accounts for violaitons of your TOS. You can't claim ignorance - it won't work.

If you are worried about loosing clients because you suspended their account think about this. Any law enforcement agency with the proper jurisdiction (could be federal, state, or local) could sieze your entire server as evidence and hold it in evidence for as long as they need to which, if they go to trial, could be years. That would take you and all of your other clients down for quite some time and really cut into your bottom line. Besides, people who have bootleg mp3's, warez, or kiddie porn on their sites are going to try to scam you anyways and will probably consume lots of bandwidth and then run off without paying the bill. They've probably been booted from other hosters before as well. Focus on your legitimate customers (who will understand your zero tolerance stance) and you'll do just fine.