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Originally Posted by midnight
Has anyone dealt with this company before?
I have a server with them for my client. They claimed he is having a copywright software downloaded from his server. I contacted the client and he denied having any download on the server. I asked them to login to the server and check it themselve. I login to his server and view contents, I could not find any download. I emailed superbserver and they appologized to me for misunderstanding. All of a sudden I received and email that they have disconnected my clients server.
Here is is superbserver response and appology:
Hello,
If they believe this DMCA notification was filed in error then they just have to tell you that the content is not on their server and all liability is removed from you when you forward their message on to us.
The DMCA is designed to give everyone a chance to remove the content or to at least confirm it is not there. There is no need for your client to admit guilt or any wrongdoing but they do need to state that the content is not there to eliminate your liability. Even if the content was there - removing it and stating that its not there is good enough. In turn we need you to forward that statement to us so we can tell the complaining party and eliminate our liability.
This issue is now closed, it is pretty obvious to me that your customer believes the content is not on the server.
Thank you and sorry for any miscommunication on my part.
Anyway, that is my only server with them. I am going to move my clients. They are bunch of confused guys. My client has sort legal advise as to whether there action constitute defamation of character.
I am just glad I do not have to deal with them anymore. We have to beware now where we take our business to.
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The appology was for assuming you were familiar with the act (which you should be if you are involved in hosting of any type) and not communicating the problem in such a way that you would understand that your client is not in any trouble but rather we just needed them to clearly state that they have either removed the content or that the content is not there. The appology was not intended to excuse us from forwarding the DMCA notification to you. SuperbServers was not at fault for serving this DMCA notification to you or for encouraging you to either have the content removed or have your client guarantee that the content was not there (either they could not find it or they actually removed it).
The other option we had, which we would have been given safe harbor for doing so, is to simply disconnect the server. Instead we gave you the opportunity to remove the content yourself or have your client remove the content. I serve anywhere from 0 to 6 DMCA notifications per week and have never had this much trouble trying to get a customer, or their customer, to either remove the content
or at least state that it was not on the server without actually having to admit it was there in the first place. No one is trying to place blame or defame anyone.
From Title 17 Chapter 5 Section 512:
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(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) 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.
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The entity filing the notification that was served to you truly believed that the content was hosted on that server so much that they filed it despite the section above. Had they purposely misrepresented the notification they would have opened themselves up to liability. I doubt anyone would file a DMCA notification and purposely misrepresent themselves in order to make themselves liable for damages.
All that we asked you to do was to have your customer either remove the content or otherwise state that it was not there so the notifying party could close the issue. Acknowleding the notification and stating that the content is not on the server is not an admission of guilt. Your customer may have told you that the content was never there in order to protect themselves or perhaps it had already been deleted before they checked.
Please, I urge you, to be come familiar with the DMCA. Specificaly Title II which is what directly applies to you and your clients.
The site wikipedia.org has a lot of well written information on the DMCA.
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