Easy guide to getting a site hosted on HostRocket (HR) shut down:

1. Choose a graphic - any graphic - on the target site and note its URL.

2. Send a professional-sounding email to HR's support address, claiming that you own the copyright to the graphics at the URL noted in step 1.

3. HR will suspend the account for "illegal activities" and ask questions later.

-------------

Yep, a competing webmaster pulled this stunt on me yesterday. I'm more annoyed with the way HR is handling this than the webmaster in question, though. THis guy DOES NOT own the copyright to the graphics he targetted for his stunt, but HR took him at his word and suspended my account without contacting me first. In order to avoid such problems, people should be required to verify that they do in fact hold copyrights to disputed images before webhosts shut sites down. That's the kind of behavior you would expect from a free host like Geocities, not something one pays money for.

Gatta,

I've seen this happen with other hosting companies as well. It's a shame they take the other person's word over their own customer in such a situation, if they haven't looked into it. Maybe they did look into it, have you asked?

<<MOD NOTE: Post removed that comments referred to, thus comments edited>>

A hosting company is supposed to ask that person for proof that he owns that image,etc.Thats HR for you.They like closing accounts for some odd reason.





Find another host

Originally posted by Gatta

3. HR will suspend the account for "illegal activities" and ask questions later.

Harsh and sad as it may be that is how most hosts operate. And rightfully so. I'm also pretty sure it is stated in the ToS. (I know I have it stated).

Suspending an account is not the same as cancelling an account though. Suspend it, contact the owner, resolve the issue, unsuspend. It's all in a days work.

Proper procedure to avoid any real liability is to sute the site in question quickly and then ask.

worst thing that can happen to the host is that they have to offer some free time on the server ( e-commerce sites don't steal images 99% of the time ) but they protect themselve from the liability of copyright infringment. the claims I have seen brought to my e-commerce clients have been very defined to a specific image ( like a scan of a diaper company logo or a detergent company's box ) and those were quickly removed and replaced witha non-offending immage.

If I'm right ( not sure here and basing it on knowledge of another industry ), a filed copyright is subject to monatary damages, ( the standard copyright protects your work but no monetary damages. The hosting company being warned is given the chance to avoid the monatary claim by acting, giving we are almost immune to most contented hosted but after a warning we are not.

MIke

Originally posted by Pilgrim
Suspending an account is not the same as cancelling an account though. Suspend it, contact the owner, resolve the issue, unsuspend. It's all in a days work.

Agreed. I am quite possibly one of Hostrocket's harshest critics, but if the complaint they received looked credible, I would say they did the right thing in this instance.

-Bob

Originally posted by Pilgrim
Suspending an account is not the same as cancelling an account though. Suspend it, contact the owner, resolve the issue, unsuspend. It's all in a days work.

That's putting the punishment before the trial. And were it my web site, I'd make sure that was the most costly day of the hosting company's life.

Many web hosting companies are under the mistaken impression that their liability will somehow be increased for every moment that the alleged copyrighted material is left up for the world to see. That is not the case. Any court in the land would permit the web hosting company to have a reasonable period of time to perform due diligence -- to determine if the allegation of copyright infringement is valid -- before taking remedial action.

There is no danger of worsening one's liability if one leaves the allegedly copyrighted material on the site while one figures out if the allegation has merit. If there is a suit and the web hosting company is named, no court will hold it against it if it didn't punish before seeking facts so long as the time it takes to do so is reasonable. A week. Two weeks. Even a month may be considered "reasonable" -- that is, as long as the web hosting company can show (if it's even asked) that during however long it took, it was actively doing logical things to determine the validity of the claim. Such logical things may include (but are not limited to) simply sending emails or letters to the parties involved requesting verification of copyright ownership, and then waiting a resonable period of time for answers, etc. There is no rush, though there would be an expectation by the courts that the parties not drag their feet, either. "Reasonableness" would be the word of the day.

The party allegedly harmed by the copyright infringement cannot speed-up the process by making threats or giving deadlines unless it can show verifiable evidence that it is truly being harmed by anything short of an immediate removal of the allegely copyrighted material from the offending web site. If the party allegedly harmed by the alleged infringement believes it is being further harmed by every minute that the material appears on the offending site, then said party is free to seek an emergency temporary restraining order pending a permanent injunction in the nearest court of relevant jurisdiction -- something that is somewhat more difficult and costly to obtain than TV shows typically portray... especially in copyright cases.

Web hosting companies should not shoot first and ask questions later. It doesn't matter if it's a suspension or a cancellation. When the site is down for whatever reason, that's effecting remedial action which may not turn out to be warranted in the end; and its an act which materially affects the fortunes of the owner of the site against which the allegtion is made.

I know that, in my personal case, had it happened to me, regardless what the TOS agreement says, I would send a formal and written demand to the hosting company (HostRocket, in this case) that it immediately reinstate the site pending invesigation of the allegation. And I would give the hosting company until end-of-business day -- that day -- to do so. If ignored (which my demand probably would be), I would be in the nearest court of relevant jurisdiction the following morning making an emergency motion, without service of notification to the respondent, asking the court to classify the event as one unforeseen by either the language or the intent of the TOS and, therefore, not covered by any terms set forth therein. And I would then ask the Court to issue an emergency temporary restraining order pending permanent injunction enjoining the web hosting company to immediately reinstate the site pending the performance of reasonable due diligence to determine the voracity of the copyright violation allegation. I would then have the order served upon the hosting company by noon. And if the site were not back up by the end of that day, I would petition the Court for sanctions in the form of a contempt of court finding with fines and costs associated therewith. I would also ask the court for the assessment of damages for each day that the hosting company continued to resist (which would be denied, mostly likely, but I'd ask anyway). And having made me go through all that, I would then draft a lawsuit against the hosting company that, even if it won, would bankrupt it just in its attorney fees.

That's how serious jumping the gun can (or at least should) be for hosting companies -- who hold the success of others' businesses and possibly livelihoods in their hands and who, therefore, have an affirmative duty to act reasonably and responsibly. Or at least that's what I'd argue, among other things, to the Court. And effectively, I assure you.

And I'd do it all without losing a minute's sleep at night. And that's because web hosting companies (and others who have such unmitigated power to shut down another's business and livelihood with a single mouseclick) sometimes need to have pounded down their throats the awsome responsibility they have to not do harm by thoughtless and kneejerk responses to unfounded allegations. The age-old axiom "Innocent until proven guilty" should always be the sentiment which prevails in matters like this. And I would have no hesitation to make that point with a sledgehammer rather than a rubber mallet if the hosting company chooses to ignore my reasonable request to be reasonable pending an investigation and verification of the facts.

Web hosting companies need not fear repercussions for being fair-minded and prudent. It's what the Courts want and expect from us -- all of us... especially given the litigious society in which we're all now living.

And taking a week or two, if that's what it took, for HostRocket to figure out if the complaintant was full-o-crap or not would have been not only seen as reasonable by the Court, but it probably would have earned HostRocket a congratulations from the bench -- a bench that sees people acting stupidly every day and, therefore, welcomes the occasional litigant who doesn't act a fool before coming before it.

Given these facts, as presented here, HostRocket was hasty and irresponsible and no explanation or description of special circumstances it might present in its defense changes that.

Period.

Originally posted by DesElms
. . . . . . HostRocket was hasty and irresponsible and no explanation or description of special circumstances it might present in its defense changes that.

Period. Well, since you put it like that, I would tend to agree.

Nice post. :)

Originally posted by DesElms


That's putting the punishment before the trial. And were it my web site, I'd make sure that was the most costly day of the hosting company's life.



You make a lot of claims in your post regarding the legal ramification(s) of Hostrocket's actions in this case. What, exactly, do you base these claims on? Case law? Personal experience?

While I'm not necessarily disputing any of what you posted, I still don't see any liability here that a well-written AUP/TOS couldn't protect the host from.

-Bob

Originally posted by TMX
I still don't see any liability here that a well-written AUP/TOS couldn't protect the host from.

Are you saying that an AUP/TOS containing language that makes it okay for a host to suspend an account based solely on an allegation would be "well-written?"

No... wait... that question doesn't really get to the heart of the matter. Strike that.

Are you saying that you could, in good conscience, advise any hosting customer to sign an AUP/TOS that would permit the hosting company to unilaterally and with impunity suspend or cancel his account upon the presentation to said hosting company of a mere and unfounded allegation from a third party -- an allegation that could very well be motivated by godknowswhat intentions from personal malice, to competitive impropriety, to downright vandalism?

Is that what you're saying?

Originally posted by DesElms


Are you saying that you could, in good conscience, advise any hosting customer to sign an AUP/TOS that would permit the hosting company to unilaterally and with impunity suspend or cancel his account upon the presentation to said hosting company of a mere and unfounded allegation from a third party -- an allegation that could very well be motivated by godknowswhat intentions from personal malice, to competitive impropriety, to downright vandalism?

Is that what you're saying?

Whether or not I advocate any such TOS/AUP is beside the point. I simply asked you to back up what you claim to be host's liability in such matters. You seemed to be trying to present an educated point of view, so I thought it would be helpful if you would clarify whether or not that point of view is based on sound legal ground/case law/precedent, or if it just another opinion thrown on the pile?

-Bob

This is not a case of us simply 'suspending a site for no reason'. Everyone here who is jumping on us immediatly is doing nothing more than attacking us for the sake of doing so and knows a lot less about the facts than anyone else involved.

I personally called the people who made the complaint against our customers website, and emailed with him several times. I made them provide multiple instances of our customer obviously taking images that were copyrighted and modifying them for placement on their website, giving no credit to the original author.

When sufficient evidence was provided to myself and 2 other people who were looking at the situation (this is our job in the situation) we decided it was more than likely the case, and because of the case of overwhelming evidence the site was suspended and the owner contacted immediatly.

The customer then contacts us regarding the issue and we go from there, unsuspending the site in the meantime and working with the customer to get the issue resolved. This is our company policy and it is how it has been and will be handled in the future, and It's also the law.

For you to all jump on the bandwagon saying 'you get what you pay for' is ludicris, especially considering what you know about the situation. We are being attacked in the same manner which we are being incorrectly accused of acting.

We, like any other host here, would much rather have an unsuspended customer than a suspended one, we do NOT make it easy for someone's site to get shut down contrary to what you may tell people.

-Brendan

Don't get mad at the host... get mad at Congress. Hosts who suspend sites without proof of copyright infringement are simply doing what they're required to do to avoid prosecution. Check the DMCA's Safe Harbor provision. See http://www.chillingeffects.org/dmca512/ for more info.

Originally posted by DesElms


Are you saying that an AUP/TOS containing language that makes it okay for a host to suspend an account based solely on an allegation would be "well-written?"

No... wait... that question doesn't really get to the heart of the matter. Strike that.

Are you saying that you could, in good conscience, advise any hosting customer to sign an AUP/TOS that would permit the hosting company to unilaterally and with impunity suspend or cancel his account upon the presentation to said hosting company of a mere and unfounded allegation from a third party -- an allegation that could very well be motivated by godknowswhat intentions from personal malice, to competitive impropriety, to downright vandalism?

Is that what you're saying?

a properly worded AUP/TOS will have the proper formalities for such a situation. Where the right's of both the host and the webowner are explained in plain english.

I was happy to see that a certain hosting company had a link to file a claim of infringment and there explination of the steps. was ather nice. I plan to copy the idea and post it here once I'm done place the format that I will use into public domain. that way others can copy it and keep everything neat.


side note : good conscience
it has nothing to do with business when you can be held liable. You got to protect yourself in every step and follow the laws. Sad but true. If you follow the letter of the law you will not look like the best place.

mike

Originally posted by VIIseven7
Don't get mad at the host... get mad at Congress. Hosts who suspend sites without proof of copyright infringement are simply doing what they're required to do to avoid prosecution. Check the DMCA's Safe Harbor provision. See http://www.chillingeffects.org/dmca512/ for more info.

Amen to that

Also, one word of advise here (to the hosts), if you ever get contacted by a lawyer or company that shows you somebody in your network is defraudign them, and they ask you for logs and information regardign the clients .. DO NOT give it to them, make sure they get a court order first

we just been in the middle of sutch problem, a client in our network was hosting a page that looked like the Bank of America website askign people to verify their credit CC cards (askign for the CC card, ping, mother's maidden name, social security, etc .. and peopel ACTUALLY gave it to them), the lawyer for BA called us, we gave him all the logs and sutch .. the FBI gave us a real hard time becuase of it, for all purposes you are violating the rights of the accused by doign it so (the FBI then got a judge order for the records)

Just some interesting info you guys might like to know :)

I onetime had an offending on my geocities account. They deleted the picture, and emailed me and said that I couldnt have that on my site. Thas was from borning geocities.

I think it should be handled similarly. The whole site is not illegal, maybe just delete the one image that is in question and leave the rest of the site up. At least the site wouldn't be 100% down.

Especially here on the Internet. Anybody can claim anything, so things should be looked into before suspending a website.

Hope thing look up for you soon Gatta. Goodluck! :)

Originally posted by DesElms


I know that, in my personal case, had it happened to me, regardless what the TOS agreement says, I would send a formal and written demand to the hosting company (HostRocket, in this case) that it immediately reinstate the site pending invesigation of the allegation. And I would give the hosting company until end-of-business day -- that day -- to do so
Period.

Sorry, you could jump high and low but the account would stay suspended until either you brought out proof that you owned the rights to the picture or b) the other party fails to proof THEY own the picture within a reasonable time.

Given the fact that "a" would be very hard to do it would probably be option "b" that we'ld be waiting for.

You are welcome to sue the other party though :D
You are welcome to sue me as well but it won't get you very far.

And it is not to be rude to the customers or anything but basic protection of the company. You see, most hosts do not have their own datacenter. They rent servers or colocate them.

Datacenters do-not-want trouble. When I would fail to take the site down pending investigation the alleged owner of the graphic would go to the datacenter. I know my datacenter. Nice peeps but they do not want trouble. I can go bla bla bla rights this and that law here and there and if they sue you (the datacenter) I'll be right behind you blah blah etc etc.

They'll turn around and pull the plug out of all my servers. Done. 500 sites down, no refunds and you'll be darn lucky if you get the data back. I'm not sure if there is a quicker way to absolutly kill your hosting company but if you know of one, let me know ;)

Spam complaints, copyright complaints, unlicensed bulletinboard complaints, distributing copyrighted software... I have had it all. Shut site down, contact owner, investigate and take action.

In all occasions did the temporary suspension end in a permanent account termination.

I understand your viewpoint as a customer but also see it from the other side. Your host follows your logic. The servers get taken down by the datacenter. All sites including your business sites go down. Will you say "good host! you stood up for the rights of the other peoples site. I do not care that my site is no also down"

No, you'ld go screaming murder. Everybody would. Hence....suspension.

The DMCA requires a court order that states they prove that their claims or true before you are required to take any action that would cause legal ramifications. Just because you stole my image, and I contact your host does not mean I can sue the host if they do not remove your site/image, I can either work with this host if they are reasonable or I can take my claim to a judge and get him to file a court order to have it removed. If the offending image/site is then not removed after the court order then I can sue both the offending party and the host.

Also a side note regarding what carlos said, that really depends on your terms of service when hosting, if the person is leasing anything from you (virtual - dedicated) or even co-located if you want to go as far as elaborating that in your TOS.

Most TOS's or AUP's state that in the event they will fully cooperate with the law regarding any investigations, however, I suppose if one wanted you could go further in explaining that but generally speaking the Lawyer that contacted you asking for the logs should have presented a court order for the logs to keep you in the clear.

Originally posted by TMX
or if it just another opinion thrown on the pile?
It's all just another opinion thrown on the pile, for godsake. Any of it. Even a Supreme Court ruling is called "an opinion." It's just that some opinions are more informed than others. That's all it ever comes down to: What and whom do you believe more? Credibility. Plausibility. What... you expected something more exacting and immutable from this life?

Originally posted by TMX
Whether or not I advocate any such TOS/AUP is beside the point.
It is precisely the point. Your words, to which I was responding -- and completely on point, I might add -- were, and I quote, "I still don't see any liability here that a well-written AUP/TOS couldn't protect the host from."

How much more of a statement of your belief in the power that a "well-written" AUP/TOS would have to remedy this situation could your words have possibly been? You do remember writing them, right?

Originally posted by TMX
I simply asked you to back up what you claim to be host's liability in such matters. You seemed to be trying to present an educated point of view, so I thought it would be helpful if you would clarify whether or not that point of view is based on sound legal ground/case law/precedent,

I was in the middle of editing my last post with a response to the rest of your question, which I had neglected to do there. But now that you've posted again, I'll just do it here...

Do you know what costs to get legal research done? I'm not going to do caselaw cites for you, for godsake. If you want to send me a check for a grand or so, I'll happily trot down to the law library (actually, I've got most of it on CD right here in my office, but its far more entertaining to make the other person think they're really inconvenienceing you) and research the crap out of it for you.

But that isn't really necessary. This is civil liability 101. Basic stuff. Here's what I was in the middle of writing when your post appeared and I abandoned in favor of this reply:

When I made my previous post, I naturally left out all of the knowledge and experience I have which brings me to this opinion. Obviously, we all do that, else every post that everyone makes here would contain 10 million words of documented life experience before the point could be made. And I won't try to provide those 10 million words here, either (though many who read my words would swear there are at least that many, I realize). Here's what I know -- from experience, I might add -- about how it all works and that's relevant...

Anyone with a hundred dollars and a hard-on can sue anyone else. The issue is whether or not the complaint has sufficient merit to get past a preliminary hearing -- at which the defense will always include a motion for dismissal... as it should. It's ultimately in the judge's hands.

Many people make the mistake of believing that just because someone does something to them that isn't fair or that's nasty or even that hurts them in some way is automatically something for which they can sue that someone. Well... of course they can sue them. I just said that, above. I should have said, "something over which they can win a lawsuit" -- or even get one heard, for that matter.

Essential to any claim in a court of law is the showing of true harm and -- surprise, surprise -- actual damages. Someone can do something to you that is really awful and really pisses you off. It might even be something that others would agree was really awful and which the someone who did it to you shouldn't have done. But unless you can show actual harm that can be measured in terms of money; actual damages that can be quantified, it's unlikely, frankly, that you'll get past the aforementioned preliminary hearing.

And that's as it should be. You think our courts are clogged-up now? Just imagine what it would be like if every time someone got pissed-off at someone else and sued them, the judge actually permitted a trial date to be set. Ohmygod! Unimaginable. There aren't enough courts, judges or days left in our lifetimes for that. Our courts are far more selective than you might realize -- and gratefully, I might add.

Actually, there's an even more effective filter -- and, thankfully, a filter that usually stops most lawsuits before they even get started: The lawyers. They're officers of the Court and they have a sworn duty to only bring forth that which has merit. The best attorney is not one who runs out and does whatever you'll pay him to do but, rather, one who has the courage to say, "I'm sorry, I just won't take a case like that. I know you're angry. And you have a right to be. What that person did to you was terrible. But, as a matter of law, the case has no merit. And I won't waste your time, mine or the Court's with it."

My point in talking about harm an actual damages is that unless the web site owner can show that he was actually harmed by HostRocket shutting him down, he probably couldn't win a full-blown lawsuit in the end. I mean he might, but he wouldn't be able to show damages so he'd be awarded a dollar or something like that. And no judge would let such a case waste its time.

The exception would be, of course, if shutting down the site would result in a certain number of dollars of lost revenue for the site's owner. If the site's owner can show that he makes X dollars per day from the site, then that amount lost due to the site's closure would be his damages. At that point, he might actually have a case -- but only if the hosting company ended-up being wrong to have shut his site down in the first place.

But none of that was my point. My point was that what HostRocket did was a premature, kneejerk reaction based on nothing but an unsubstantiated allegation; and, moreover, my even larger point was that HostRocket took its remedial action without having first done due diligence -- which includes getting input from the owner of the site first. Brendan has since posted that he did due diligence and that there was more to the facts than we knew. And that may well be the case. In fact, it may well be that the site owner was displaying images that were absolutely improper, and that HostRocket's research clearly revealed same. But Brendan described it as follows, and I quote:

Originally posted by HRBrendan
I personally called the people who made the complaint against our customers website, and emailed with him several times. I made them provide multiple instances of our customer obviously taking images that were copyrighted and modifying them for placement on their website, giving no credit to the original author.

When sufficient evidence was provided to myself and 2 other people who were looking at the situation (this is our job in the situation) we decided it was more than likely the case, and because of the case of overwhelming evidence the site was suspended and the owner contacted immediatly.

The customer then contacts us regarding the issue and we go from there

My opening volley was, "That's putting the punishment before the trial." That was my thesis sentence. It remains the sole point around which all subsequent supporting language rallies.

Where in HostRocket's procedure was taking the matter up with the owner of the allegely offending site as well (the party, incidentally, who has paid HostRocket for services and whom, therefore, as a matter of law, is the first party to whom HostRocket has a fiduciary responsibility), before it effected wholesale, unilateral remediation? And to the detriment of its customer who, prior to effecting said remediation, had no chance whatsoever to refute the allegation before being harmed by the site's suspension.

Most judges would see that as facially wrong -- harmful to the site owner on its face, regardless of the site's owner could show actual damages later. So, therefore, the judge would most likely at least grant a temporary restraining order pending a hearing on permanent injunction. And by the time a hearing like that ever occured, the underlying matter will have been settled and long over with. The site owner -- having finally been made aware of a matter about which he should have been made aware from the very beginning -- would either provide proof that he has the right to display the images or he wouldn't. And if he couldn't, then he'd take them off the site and that, hopefully, would be the end of it.

Again, it is the "innocent until proven guilty" concept at work, here. While, admittedly, that phrase was meant to apply only to criminal law, the sentiment of it should certainly apply to civil law -- or at least we'd all like to hope it would in the perfect little world in which we all wished we lived.

HostRocket waved its magic wand and obliterated the web presence of someone who -- guilty or not -- had not had a chance to defend himself before being summarily punished. That was the act with which I took issue... and which I stated I would attempt to undo by going to court the next morning and arguing its fundamental wrongness -- on its face, regardless of my ability to quantify the harm down the road. That's what temporarily injunctions are for: Emergency measures taken under dire circumstances when time is of the essence.

And if you go back and read my post, I'm pretty sure that's all I said.

Originally posted by HRBrendan
When sufficient evidence was provided to myself and 2 other people who were looking at the situation (this is our job in the situation) we decided it was more than likely the case, and because of the case of overwhelming evidence the site was suspended and the owner contacted immediatly.

The customer then contacts us regarding the issue and we go from there, unsuspending the site in the meantime and working with the customer to get the issue resolved. This is our company policy and it is how it has been and will be handled in the future, and It's also the law.

-Brendan

I've come to understand that this is the way most hosts handle this but I'm still baffled as to why the host doesn't give the customer notice that a complaint had been made and that their site will be suspended. Even if the host has already made the decision to suspend they should give the customer notice so they can make quick arrangements and avoid the site going down. To suspend first and notify the customer later, is having the host enforce punishment on the alleged offender. Why hosts have come to believe that it is their job to measure out punishment is baffeling. As long as the alleged offending site is off the host's server then host has avoided liability...and this could be done after giving the customer a little notice. Don't you think you owe it to a paying customer to give them this notice...why do hosts feel its their job to punish by suspending without notice?

It sounds to me like Brendan did all the he could given an ugly situation. I don't know what else you could expect a hosting company to do.

Giving notice is common curtesy ofcourse. However you'll typically want to suspend first and then notify the customer so he is unable to make changes to the site, edit/remove/delete evidence.

Just in case you DO suspend the site of a lawyer you'll want to make darn sure he doesn't remove the offending pictures and then sues you claiming they were never there ;)

Originally posted by Pilgrim
Sorry, you could jump high and low but the account would stay suspended until either you brought out proof that you owned the rights to the picture or b) the other party fails to proof THEY own the picture within a reasonable time.
Fortunately, you don't get to make that decision if the party in front of whom I decide to do the jumping is a judge who has jurisdiction over the matter -- and you. That's why we have courts: So I can say "you will" and you can say "I won't" and the judge can either either refuse to order you to, or can order you to whether you like it or not. And once the latter happens, if you don't want to ultimately spend a week in jail for contempt, you'll do it. And smartly.


Originally posted by Pilgrim
You are welcome to sue me as well but it won't get you very far.
Well, again, you're not the one who decides that, are you?

Originally posted by Pilgrim
And it is not to be rude to the customers or anything but basic protection of the company. You see, most hosts do not have their own datacenter. They rent servers or colocate them.

Datacenters do-not-want trouble. When I would fail to take the site down pending investigation the alleged owner of the graphic would go to the datacenter. I know my datacenter. Nice peeps
------- SNIP ------

Everything else you wrote has to do with the calculated risk that all businesses take when they decide who to piss off and who not to. You absolutely could behave as you described. And by doing so you'd be weighing the potential damage to you of having the datacenter pull the plug versus the potential damage to you of being sued by the site owner.

It's always a balancing act. And there's not one thing wrong with you doing that balancing act. Only you know what kind of business eventuality would be most harmful to you and what risks you're willing to take. And that's fine. We have no argument on that score.

This is starting to be an interesting thread.

But I am still at a loss here. The customer and I basically enter into an agreement. I provide the hosting, they agree to abide by the rules I have set (tos, aup).

When they agree to the terms and the terms are not against the law in the State how can they ever fight the terms later?

Here is an example of what I have in the tos regarding this:

If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer's machines were suspended.

<company name> reserves the right to suspend network access to any customer if in the judgment of the <company anem network administrators the customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which <company name> chooses

Also, a little off-topic, I would like to stress to everybody reading this that hosting companies do *not* get a kick out of suspending/deleting accounts.

Most hosts here are also the owner of their companies and many will work hard to try and make their company the next Verio.

Unfortunatly account suspensions "pending investigation" are sometimes neccesary. Not only to protect the company but just as much for protecting the other customers on that very same server.

It sucks big time when you are the target of such actions when you are innocent. However you should also realize that the chance of this happening to you is minimal if you are truly innocent. Don't spam, don't distribute copyrighted software and above all don't use commercial cgi-scripts that you "copied from a friend who has a lisence". (read: forums)

Not knowing what is in the tos is no excuse for not following the rules in the tos.

And when in doubt... just ask your host if it would be ok.

Originally posted by Pilgrim
This is starting to be an interesting thread.
You're right. It is getting interesting. I just wish I had more time for it. I should never have gotten into this today. Why can't these time-consuming thread crop up over the weekend or late at night or something? [grin]

But that notwithstanding, thanks for your excellent hypothetical scenario and question -- perhaps the best one yet...

Originally posted by Pilgrim
But I am still at a loss here. The customer and I basically enter into an agreement. I provide the hosting, they agree to abide by the rules I have set (tos, aup).

When they agree to the terms and the terms are not against the law in the State how can they ever fight the terms later?

Here is an example of what I have in the tos regarding this:

If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer's machines were suspended.

<company name> reserves the right to suspend network access to any customer if in the judgment of the <company anem network administrators the customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which <company name> chooses


Define "inappropriate activity."

And even if you had used the phrase "illegal activity," at what point and by what means did HostRocket prove illegality prior to shutting down the site? It was an allegation of illegality, motivated and, moreover, substantiated by, godknowswhat as far as HostRocket should have been concerned.

Oh... geez.... as soon as I typed that I said to myself, "What am I doing, here? I don't have time for this! This can't become a seminar in contract law, now. Ahhhhhh!"

That's what went through my head.

I can at least tell you this: The first thing I think of when I see language like that is "overly broad" and, of course, overly broad language is nearly always voidable.

We've all asked people to sign contracts that have language like this in them. Catch-all language, we hope, will do exactly that: Cover whatever our other language doesn't cover expressly.

But the danger of catch-all language is that it could be found by the Court to be overly-broad.

Companies put forth language like this for preemptive reasons as much as for their own protection later. It's tantamount to puffing. One hopes such language will deter those who don't know that such language is usually voidable for being overly broad.

I'm not saying that your language, presented above, is overly broad or voidable. I'd need to read the rest of the agreement to even begin to know that. Nor is this the place for that kind of assessment. Anyway, that's a matter between you and your attorney, whom you should consult about this sort of thing for advice upon which you actually rely.

I'm just saying that it's the kind of language that I've written myself and which I've had a judge tell later me was overly-broad (which came as no surprise at the time, I might add... remember, I was puffing).

I think the larger message, here, that is not only most instructive, but will help keep this thread more on point is: The DMCA does not require that hosting companies behave as the starter of this thread described HostRocket did to him -- or that HostRocket itself, later in the thread, stated that it did. My original point -- and I think it's still relevant here, now -- was that the law permits the hosting company to slow down and dot its i's and cross its t's before summarily shutting down a site. And HostRocket should have done so. Period.

If a hosting company wants to "preserve evidence," then take a snapshot of the entire site -- or at least the pages in question -- and put them in a folder for safekeeping. You can always swear that that was the condition of the site as it existed on suchandsuch date. If the jury believes you, then cool. If not, then that's juries for you. That's how the game is played.

If a hosting company has a child porn site or something like that, well that's different. That's facially illegal. There's a huge difference between something that's illegal on its face and something that must be put through the wringer of due process before it may be declared so. If you get a child porno site, you must decide, "Do I want to catch me a child pronographer or do I just want to stop this right here and now?"

If it's the latter, then just shut it down and be done with it. If you get threatened with a lawsuit, tell them that would be perfect -- then that way you'll know who they really are so you can tell the FBI where to find them.

If it's the former, then contact your datacenter and tell them what you're doing and ask them to work with you; to not shut down everything because you're leaving the site up for a day or two. Tell them you're contacting the FBI immediately -- today... when you get done typing the message that you're typing to them -- and that you're leaving it up in case the FBI wants to have you work with them to catch the guy. Once you shut it down, they guy's gone into the night. But as long as it's up and he thinks you haven't noticed, he'll keep uploading to it and using it and leaving a trail in your server logs for the feds to catch him. And nothing's more satisfying in this life than when you've helped the cops nab one of those sick b*#$tards.

The issue, here, I think, is notice. I stated that HostRocket may or may not have been right about the copyright infringement. But why in godsname would a hosting company just shut down a cutomer's site without bothering to contact the customer first? Not after, but before shutting down the site.

Those who have posted that it was the best HostRocket could do are simply wrong. It was not the best they could do. The best they could do is slow down and remember that all stories have two sides; and that the law does not require them to jump right in and shut it down before doing due diligence.

And for HostRocket to have done so would not have been a mere courtesy. It would have simply been the right and decent thing to do, and the common decency angle seems to be one not mentioned here, yet.

Ugh. I can't keep doing this. I hope that helped. I gotta' go do something else. Maybe I'll circle back and spar more with everyone later. It's been fun. Gotta' go.

From my point of view our employees acted exactly how they should have. We have a terms of service which was not followed by a customer and exactly what it says will happen in our terms of service happened to the customer. We do not want to suspend customer sites, the goal isn't to obtain as many suspended customers as possible, and we work with them to get them unsuspended as soon as possible. We even go as far as to open a trouble ticket for them with a description of the problem already in it. You may disagree with the actions we take, however we do not take the actions unless the situation warrents it. We were provided 18 different examples of original work stolen from a site, modified and published again on another site, and acted how we see fit in the situation.

-Brendan

I decided to delete my post rather than have it look to some as though I "secretly hate my customers". Do I? Of course not.

The fact is, none of us could survive without our customers, and none of us would be in business very long if all we did was arbitrarily terminate their accounts.

I personally go out of my way for my customers, and do everything I can to ensure that their experience with us is a positive one. When the occasional bump in the road crops up, I will do what I can to work through whatever misunderstanding we're facing. There are times, however, that a host needs the ability to terminate an account quickly, and without fear of legal repercussions - if spammers, pornographers, music/software pirates, etc...show up on my server, they will be suspended or terminated immediately upon my becoming aware of them, period. You cannot give "due process" to people like this, because their sole purpose is to exploit your services for their own gain, and the hell with you and everyone else. Worst-case scenario, they could put you right out of business.

Anyway, that's the short version of my previously long-winded post.

More coffee, please....:yawn:

-Bob

I would just like to ask HostRocket and any of the other hosts...why would you ever suspend a client's account without first notifying the client of that impending suspension? Assuming almost all possible instances except the extreme case where a law enforcement ageny ask's the host to take the site offline immediately I can't find a good reason why a host wouldn't notify a paying customer first and possibly work out the problem before taking the site offline. Many hosts must secretly hate their customers...other wise it doesn't make sense.

Greggish: real scenario.

I got a spamcomplaint from spamcop forwarded from the datacenter. They told me to take action, to make damn sure they didn't receive another complaint and if I failed to take action they would do whatever they deemded neccesary... (try thinking of a few actions they could take...)

I wrote a nice email to the person who owned the site where the spam originated from (hi Jeff, I've received this complaint.. did you send this? ..please don't do it again... blah blah)

So what does Jeff do? Does he feel bad about himself? Does he apologize? Does he stop sending spam?

Nope. Jeff, being the nice guy that he is, immediatly starts sending millions and millions of emails through some damn automatic script WHILE HE STILL CAN! Hoping to put as many through before we catch on to him.

Ofcourse he managed to crash the server in the process...


So since then I first suspend the site, and then ask questions.

Don't think that because YOU wouldn't do something like that that others also won't do it.

The servers are my house. If you agree to the rules you can live there. I'll serve you milk and cookies and make you feel happy and comfortable in my house.
...but when I see you walking around with a burning stick of dynamite I'll FIRST throw you out and THEN ask you "is that real dynamite?"

Originally posted by DanielP
The DMCA requires a court order that states they prove that their claims or true before you are required to take any action that would cause legal ramifications.

Umm, no it doesn't. It requires that certain notification procedures be followed. Then there's another procedure for the alleged offender to follow.

Kevin

The servers are my house. If you agree to the rules you can live there. I'll serve you milk and cookies and make you feel happy and comfortable in my house.
...but when I see you walking around with a burning stick of dynamite I'll FIRST throw you out and THEN ask you "is that real dynamite?"

What if it's just a twinkie? Not dynamite.

What if you almost choked to death on a twinkie when you were 9 and so now your house has a no twinkie rule and your guest is walking around waving a twinkie?

Do you still throw him out and then ask if it's a real twinkie?

Somewhere in this discussion, we've lost sight of the fact that spam and child porn -- just to name two -- are more like dynamite, and possible copyright violations in the form of either graphics or MP3 files that the site owner might not have full legal rights to is more like the twinkie.

When you have an obvious spammer on your server -- or, worse, a child pornographer -- nuke 'em, for godsake!

But when a third party says, "Hey, this guy ripped me off," or "Hey, this guy's got stuff on his server that he doesn't have legal rights to," don't just nuke the alleged ripper's account until you've bygod made sure that the accuser isn't full of sh_t! That accusation is a legal conclusion that may require a helluva a lot more comprehensive examination than one can do in a day.

That, if you go back and look at my original post, has been my point all along. Just because you get a complaint about a customer's content or behavior on your server, don't shoot first and ask questions later unless it obviously makes sense to do so as, for example, in the case of a spammer or child pornographer.

Reasonableness is (or should be) the word of the day.

Is that too much to ask of a hosting company that has taken the web site owner's money and promised him a service in exchange?

How this discussion went from the relatively non-emergent matter of who owns which graphics to the completely different, far more serious matters of such things as spam and child porn I do not know.

Not every transgression against one's "house" deserves the same harsh response from its owner. When you wrecked the family car, your 'ol man grounded you for a week. When you forgot to say "May I be excused" before getting up from the table, did he mete out the same punishment? You don't swat a fly with a baseball bat, for godsake!

An allegation of possible copyright violation does not warrant a web site suspension without first contacting the site's owner and saying something to the effect of, "So, hey... what's up with this?"

Again, reasonableness. Moderation. Restraint. Why do so many (no all, mind you... but at least many) server owners just shoot first and ask questions later when that's clearly an inappropriate response?

Isn't that, if you go back and look at how this thread began, really the issue here?

Originally posted by DesElms
An allegation of possible copyright violation does not warrant a web site suspension without first contacting the site's owner and saying something to the effect of, "So, hey... what's up with this?" [/B]

Amen to that. It's amazing that so many hosts, HostRocket not being the only one, get the process of customer notification and site suspension backwards. :confused:

Originally posted by DesElms


What if it's just a twinkie? Not dynamite.

What if you almost choked to death on a twinkie when you were 9 and so now your house has a no twinkie rule and your guest is walking around waving a twinkie?

Do you still throw him out and then ask if it's a real twinkie?

[/B]

don't laugh, I have guest rule that everyone has to read and follow.

nobody is welcome to talk about religion with the tone of mine is better than yours, within my parties. My parties have anywhere from 20 to 100 people, I have to keep a set of laws that must be comformed to, any other topic is open for chat. I've tossed out a few people, and personally I really don't care that I did. people realize that those types of chat's bring on overly hostile debates. I have hasidic ( sp? ) jews sitting next to moslems, siting next to hindi, sitting next to siekes, next to whatever and people from different countries . All having spirited debates about everything under the sun ( no religion chat ), while all the kids are playing tag and hide and go seek, me cooking up a storm and a half of everything ( even vegan foods ) .

I've learned that by having that exclusion the parties have grown to be more fun, and the rules have been adopted my some of my guest. it helps keep the peace and expose our children to other cultures.

Oh don't get me wrong, we have chats about religion, but it's to the point of clarification of specific customs ( mostly the eating habits, and clothing ), traditions ( what is the proceedure of prayer and respect ), greating habits and kept well within fine lines as to not rip apart the communal chats of the parties. Children are always called upon to listen to these thing, because in my beliefs, food and the learning of other cultures is the proper way on avoiding discrimination. heck it's fun also, I did not know that the proper way of greating a Thailandese is with your hands clasped in prayer style ( or something to that affect ). another fun thing is being careful of hand symbols ( like thumbs up ), certain countries it can be real insultive.

well anyway sorry for ranting

mike

p.s. - if a guest annoys you, toss them the heck out politely

very wise rules, mine arent that far away, i.e. if your sober enough to engage in a discussion about religion go away and come back when you can barely walk and remember your name.
i have students from all vaculties passed out next to each other in complete harmony ;)

Originally posted by ADEhost
don't laugh, I have guest rule that everyone has to read and follow.

nobody is welcome to talk about religion with the tone of mine is better than yours, within my parties. My parties have anywhere from 20 to 100 people, I have to keep a set of laws that must be comformed to, any other topic is open for chat. I've tossed out a few people, and personally I really don't care that I did. people
------------ SNIP ------------

I can't even begin to know how to respond to this.


:rolleyes:

Originally posted by DesElms

I can't even begin to know how to respond to this.


:rolleyes:

LOL< then dont comment at all hahahha

Originally posted by Gatta
Easy guide to getting a site hosted on HostRocket (HR) shut down:

1. Choose a graphic - any graphic - on the target site and note its URL.

2. Send a professional-sounding email to HR's support address, claiming that you own the copyright to the graphics at the URL noted in step 1.

3. HR will suspend the account for "illegal activities" and ask questions later.

-------------

Yep, a competing webmaster pulled this stunt on me yesterday. I'm more annoyed with the way HR is handling this than the webmaster in question, though. THis guy DOES NOT own the copyright to the graphics he targetted for his stunt, but HR took him at his word and suspended my account without contacting me first. In order to avoid such problems, people should be required to verify that they do in fact hold copyrights to disputed images before webhosts shut sites down. That's the kind of behavior you would expect from a free host like Geocities, not something one pays money for.

the question is: do you indeed own the copyright on that image? if not, what you were going was illegal. even if your competitor didn't own the copyright himself.

hrmm

Originally posted by richy
very wise rules, mine arent that far away, i.e. if your sober enough to engage in a discussion about religion go away and come back when you can barely walk and remember your name.
i have students from all vaculties passed out next to each other in complete harmony ;)

LOL, thats rule number 11 and 8, (11) you can drink till you pass out, but you can not pass out in my flower garden. ( 12) you may not stand on the railing of the cliff (8) please make sure you carry proper driving direction from my home to your home, no need to drive drunk and get killed. Rules 1-10 are the serious rules.

more than once the cab company has thanked me for having my happy drunk guest with proper driving direction.

mike

Originally posted by HRBrendan
This is not a case of us simply 'suspending a site for no reason'. Everyone here who is jumping on us immediatly is doing nothing more than attacking us for the sake of doing so and knows a lot less about the facts than anyone else involved.

I personally called the people who made the complaint against our customers website, and emailed with him several times. I made them provide multiple instances of our customer obviously taking images that were copyrighted and modifying them for placement on their website, giving no credit to the original author.

When sufficient evidence was provided to myself and 2 other people who were looking at the situation (this is our job in the situation) we decided it was more than likely the case, and because of the case of overwhelming evidence the site was suspended and the owner contacted immediatly.

The customer then contacts us regarding the issue and we go from there, unsuspending the site in the meantime and working with the customer to get the issue resolved. This is our company policy and it is how it has been and will be handled in the future, and It's also the law.

For you to all jump on the bandwagon saying 'you get what you pay for' is ludicris, especially considering what you know about the situation. We are being attacked in the same manner which we are being incorrectly accused of acting.

We, like any other host here, would much rather have an unsuspended customer than a suspended one, we do NOT make it easy for someone's site to get shut down contrary to what you may tell people.

-Brendan

Brendan,

Kind regards from someone who knows all too well what Gregg DesElms is all about. Should you come across a sign-up or an inquiry from Mr. DesElms -- DECLINE. This guy is just plain nuts, a complete wacko. I'm sure while reading his post(s) you're saying to yourself, "What the hell? This guy is just pulling this out of his ass!" And you would be right in that assumption. Avoid him at all costs.

BURP!

OH GOSH! Im ever soooooo rude!
:o

The question is if an image had been copyright, then it was placed on another site, the time in which it could take to contact the owner could be enough time for an image to be distrubuted under another id. I think the host should make up thier own mind but not without a good look first. There is without a doubt a need to act quickly in those situations incase there is a copyright violation.