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  1. #1
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    someone threatening to sue me? what can i do?

    I run a small hosting company, one of my customers have the same design of another website. The owner of the other website claims he will sue me if i do not close my customer's website down.


    What can i do? Does he have right to threaten me?
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  2. #2
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    Hmm, check your TOS. If you have written anything about illegal use and that sort of thing you have full rights to shut him down.

    BUT make sure it is a 100% unique design and not something that can be bought for $50 a pop.
    GeeksGather - Undergoing redevelopment. Stand by.

  3. #3
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    I run a small hosting company, one of my customers have the same design of another website. The owner of the other website claims he will sue me if i do not close my customer's website down.


    What can i do? Does he have right to threaten me?
    While I am hardly a lawyer of any kind, I believe the law related to such is regarding your client and not you. They can request the information from the host (by legal means) and then persue your client but as your client is technically who should be held responsible for their content I would only presume that is how it goes. In any case I am sure many others will clarify this.

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  4. #4
    If it is copyrighted and the host refuses to take it down they are leaving themselves open as well.

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  5. #5
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    But still The accuser must provide proof of copyright infringement before you need to do anything at all, A simple claim from joe web user does not warrant action in my opinion.

    But just because your a nice guy you might let your customer know that someone has made a claim.

  6. #6
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    This is why people always recommend that those who are serious about participating in the webhosting industry retain professional legal assistance.

    Do you need to investigate claims of copyright infringement? Are you liable if you don't? Are you liable if you do, but turn out to be wrong? Is the burden of proof on the victim of the infringement, or the accused?

    Also, demanding that action be taken to avoid a lawsuit doesn't necessarily constitute a 'threat'. Whatever you want to call it, is it serious? Can they do that? Are you serious? Ask your attorney, then.

    All I can do is tell you what I would do, but I won't. First of all, it cost me $125/hr to have not only the course of action, but the reasoning behind it and the problems to avoid, explained to me. Second, I can't but guess how the advice given to me regarding my business applies to your situation. If my attorney advised you on the same issue he advised me, your decision based on that advice could be the opposite of mine.

    Often, the decision a company makes doesn't come down to what's right, but what's worth fighting about. Do I fight for my client's first amendment right to post a white supremacy website on my server? Or do I ask my client to take it down or find hosting elsewhere? Does my right to refuse service apply? Better ask my lawyer...
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  7. #7
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    You should talk to an attorney immediately.

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  8. #8
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    Re: someone threatening to sue me? what can i do?

    Originally posted by redwan
    What can i do? Does he have right to threaten me?
    In a word YES. Anyone can sue anybody for anything, the more important questions become:
    1. Do they have a valid claim (do they stand a good chance of winning)
    2. Whether or not they have a valid claim, is it worth your time, effort and money to fight them.

    As BigBison already said your best bet is to get professional advice and avoid doing anything until you've discussed this with an attorney.
    "Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property... Horrid mischief would ensue were the law-abiding deprived of the use of them." - Thomas Paine

  9. #9
    First respond to the complaintent that you are investigating the matter and will get back to him. Then contact the client, let them know what is going on and ask them to respond to the situation, and in the meantime, call your laywer.

    To be honest, most ppl who scream "I'm gonna sue" never do, but better safe then sorry.

  10. #10
    I completely agree with ArtieFishill. Shutting down the site without contacting your client first is not a good idea.
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  11. #11
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    Re: someone threatening to sue me? what can i do?

    Originally posted by redwan
    I run a small hosting company, one of my customers have the same design of another website. The owner of the other website claims he will sue me if i do not close my customer's website down.

    What can i do? Does he have right to threaten me?
    Would you report an abuse to a web hosting company and immediatly tell them that you will sue them if they don't act, in this case close their client's site?

    That's very agressive and hostile. Don't send them a very nice reply. Send them a very short reply. Something like: "Your report has been forwarded to our abuse department."

    Send an email to your client and ask for feedback.

    I don't have enough info to tell you what I would do. Imagine that microsoft sent that abuse report and my client's site was a rip of one of microsoft's sites. I would shut him ASAP.

    There are so many different scenarios.
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  12. #12
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    Ignore it.

    If you actually get sued then get a lawyer.

  13. #13
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    This came from the legal section of theplanet.com's website. Sounds like they have this covered, you may want to do something similar....

    But ask yourself this: How many YEARS of hosting does this customer have to pay you to make up for a few hours of a lawyer's billable time, plus your time messing around with this.

    Economies of scale allow BIG companies to have legal guys sitting in the wings, but a small hosting company (your words, not mine) can get wiped out with a legal bill that has a comma in the "amount due" column. You want to see how easy it is to get sued: don't pay the lawyer invoice on time!!

    Save your legal budget for something important... look at the claim, decide if your subscriber ripped someone's stuff, then take him offline until he fixes it.

    Is it worth a $xxx (or $x,xxx) lawyer bill to defend a $xx (or just $x) hosting customer??


    Copyright Notifications

    Procedure for Making Claims of Copyright Infringement for Purposes of Title 17, Section 512, of The United States Code


    The individual identified below is the “Designated Agent”:


    Service Provider(s) : ThePlanet.com Internet Services, Inc. and all subsidiaries

    Name of Agent Designated to Receive Notification of Claimed Infringement : George Poletes
    Legal Counsel

    Full Address of Designated Agent to Which Notification Should be Sent : 1333 Stemmons Freeway
    Suite 110
    Dallas, TX 75207

    Telephone Number of Designated Agent : 214.782.7800

    Facsimile Number of Designated Agent : 214.782.7756

    E-Mail Address of Designated Agent : [email protected]



    To be effective, a Notification of Claimed Infringement must meet the following requirements:

    It must be a written communication;
    It must be sent to the designated agent identified above;
    It must include the following:

    A physical or electronic signature of a person (“Complaining Party”) authorized to act on behalf of the owner of an exclusive right that is claimed to be infringed;
    Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
    Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
    Information reasonably sufficient to permit the service provider to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
    A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
    A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
    When a Complaining Party provides a Notification of Claimed Infringement in compliance with the above rules, the Service Provider will do the following:

    Expeditiously remove or disable access to the material that is claimed to be infringing; and
    Take reasonable steps to notify the alleged infringer ("Subscriber") of the infringement claim(s) and that the material claimed to be infringing has been removed or that access to the material has be disabled;
    Upon receipt of notice from the Service Provider that a claim of infringement has been made and that the material has been removed or that access to it has been disabled, the Subscriber may provide a Counter Notification.

    To be effective, a Counter Notification must meet the following requirements:

    It must be a written communication;
    It must be sent to the Service Provider's Designated Agent;
    It must include the following:

    A physical or electronic signature of the Subscriber;
    Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
    A statement, under penalty of perjury, that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
    The Subscriber's name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the Subscriber’s address is located, or if the Subscriber's address is outside of the United States, for any judicial district in which the Service Provider may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person
    Upon receipt of a Counter Notification from the Subscriber containing the information as outlined above, the Service Provider will:

    Promptly provide the Complaining Party with a copy of the Counter Notification;
    Inform the Complaining Party that it will replace the removed material or cease disabling access to it within ten (10) business days following receipt of the Counter Notice;
    Replace the removed material or cease disabling access to the material in not less than ten (10), nor more than fourteen (14), business days following receipt of the Counter Notice, provided Service Provider's Designated Agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on Service Provider's network or system.

    CAUTION: Pursuant to Title 17, Section 512(f) of the United States Code, any person who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

  14. #14
    Join Date
    Jun 2001
    Posts
    740
    Originally posted by classics
    Ignore it.

    If you actually get sued then get a lawyer.
    Reply telling them to sort it out with the website, not with you. And then ignore until you are sued (which won't happen.)

  15. #15
    It's foolish, just ignore it.
    Also, make him prove that it's his, anyone can say that.

  16. #16
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    May 2003
    Location
    Florida
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    Re: someone threatening to sue me? what can i do?

    Originally posted by redwan
    I run a small hosting company, one of my customers have the same design of another website. The owner of the other website claims he will sue me if i do not close my customer's website down.


    What can i do? Does he have right to threaten me?
    I am not a lawyer, so what I say is only what I would do.

    1. Reply to the complaint saying you are investigating the situation and will take action when you know what the facts are. Ask them for proof they are the owner of the design.

    2. contact your client and tell them about the complaint. Explain they must prove they own the design or will have to remove it. Give them a set time like 24 or 48 hours.

    By taking these actions, you are helping to protect yourself. Until you have received proof of ownership, you probably shouldn't take down the site. You have a contract with your customer. Turning his site off without proof is probably violating your agreement with him. Depending on your TOS, you might have the legal right to shut it down - but is it the right thing to do?


    I have had a similar situation happen twice. In both instances, the site was replaced by my client immediately.

  17. #17
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    Apr 2004
    Location
    United Kingdom
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    While I am hardly a lawyer of any kind, I believe the law related to such is regarding your client and not you. They can request the information from the host (by legal means) and then persue your client but as your client is technically who should be held responsible for their content I would only presume that is how it goes. In any case I am sure many others will clarify this.
    But wait, the hoster is hosting the content on a server that either leases or owns. Does that not make him also responsible? He basically owns the web site that his client runs and has the power to delete/suspend/remove any data.

    I would of thought it was more of the hosters problem than the actual client. I'm not a lawyer wither so I'm not sure on this one.

  18. #18
    But wait, the hoster is hosting the content on a server that either leases or owns. Does that not make him also responsible? He basically owns the web site that his client runs and has the power to delete/suspend/remove any data.

    I would of thought it was more of the hosters problem than the actual client. I'm not a lawyer wither so I'm not sure on this one.
    The fact that a host "OWNS" or "LEASES" a server does not make him responsible for its customer's data hosted within the server(s), AS LONG AS the hosting company has customized their TOS (Terms of Service) correctly.

    The following provisions is what I recommend that every web host's include within their TOS:
    -- Law Enforcement: We will immediately terminate, with or without reason and with or without any search warrants the subscriber's account upon verifying the legitimacy of the complainant if ANY Law Enforcement or the FBI requests us to do so. We will not defend or represent any of our subscribers.

    Now, for the case of this guy, it may not have been a law enforcement agency that complained regarding the copyright infringement, BUT you should ask the complaintant for PROOF of claim, AND you should notify the affected customer regarding the claim -- ask your customer for proof of ownerhip of the design/or piece of work, if he does not owns is (as if he did not design it, or program it him self) then ask him if he purchased that script or design (URL location, or address?), then you can contact that place where your customer "purcahsed" the design and verify if THEY own it, if they happens to own it and you were able to verity that your customers purcased the work from them, turn again to the complaintant and ask him further question, this MAY also be the case of some one trying to retailate against one of your subscribers for any reason, such as the person may not agree with your subscriber's website content, etc...

    Here is another provision that I recommend for a web host's TOS:
    --Copyright or trademark infringement: Use of our service to transmit any material (by e-mail, uploading, posting or otherwise) that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software is prohibited. This also includes intellectual property rights. Distribution and/or posting of copyrighted or the aforementioned infringements will not be tolerated.

    This gives you the legal right to suspend or terminate a subscriber's account if he or she is found violating other people's intellectual property.

    Here is another provision that protects you against the misuse of your customer's or the reseller's customer's:
    -- Subscribers will be held responsible for any activity by third parties using their accounts in a way that violates the TOS. You are responsible for any misuse of your account, even if the inappropriate activity was committed by a friend, family member, guest or employee. Therefore, you must take steps to ensure that others do not gain unauthorized access to your account.

    Subscribers who are resellers are responsible for enforcing the TOS to all of their clients. If their clients are found to be violating the TOS, we will suspend and/or terminate the offending site and let the reseller know. It is advisable that you adopt similar or stricter policies than ours. Our Subscribers may use and/or modify a copy of our TOS for use on their website(s).

    The above transfers all liability FROM you (as the server's owner) TO your subscribers. You CLEAN your hands that way, so if misuse is detected on your subscriber's server space, YOU wont be liable for it, but your customer instead

    Ok, what about if your customer decides to SUE you instead, because you suspended his site, or you caused him some financial loss (during the investigation period), then the following provision will protect you against these "Customers Get Backs":
    --Indemnification: In agreeing to the TOS, Subscriber indemnifies us for any violation of the TOS that results in loss to us or the bringing of any claim against us by any third-party. This means that if we are sued because of a Subscriber's or a customer of a Subscriber's activity, the Subscriber will pay any damages awarded against us, plus all costs and attorney's fees.

    You should carefully scrutinize your TOS and make sure that you are FULLY protected against ANYTING you can think off that could happen. You should create "scenarios" and think how different events or causes can affect your business, and then add new, or edit provisions to your TOS. Take a software as an example, softwares always have bugs (which are programming imperfections) that must be patched (be it security flaws, or stability problems), same thing with TOS, you MUST carefully examine your TOS for any "imperfections" (or should I say "security vulnerabilities") where a customer can take advantage (or exploit) to try to successfully sue you with the whole purpose of extracting money off you). So you can add more provisons later on, you should make sure that you state IN YOUR TOS that you reserve the right to revise, amend, or modify the TOS at any time and in any manner.

    NOTE: I make no guarantees of anything said herein and I take no responsibility what-so-ever if you decide to copy these provisions to your TOS. The above is only the procedure I take if I am presented with similar situation, and how I defend my self (legally) against any claims where my customers are solely responsible for.
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  19. #19
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    Aug 2004
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    Sydney, Australia
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    I've realised that 95+% of threats, are just that, threats, and nothing more. The moment you ask for a court order that requests the site to be taken down, you get no response.

    Re: asking the client to 'prove' whatever about the design; it's simply not the hosts job.
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  20. #20
    Join Date
    Feb 2003
    Location
    Knoxville, TN
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    Hey, we got hit with a similar incident last year where a client had a website that had some alleged infringements on a major theme part. The theme part threatened us as well. Through the course, we did nothing to the client other than alert him. Then we did receive an actual court order for us to take the clients website down, and provide archives copies of all the code and database.

    Client was taken offline immediately upon receipt, and order stated that we were not to communicate with client regarding , but rather send him to his attorney for further instruction. We complied.

    Our company was not liable, and complied. Our terms and conditions and digital millennium act notifications saved us as it locked it down to client.

    I am by no means an attorney, and may not be same in all states, but this protects us here in tennessee.

    Here is the link to our terms if you would like to peruse them...

    <<Snipped>>

    Patrick
    Last edited by anon-e-mouse; 08-14-2005 at 03:19 AM.

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