Back about 2 years ago, Old Os got a dmca takedown notice. Our server was immediately taken down. (details at: http://www.oldos.org/history/oms/letter.htm ).

Now, we get ANOTHER dmca notice from Microsoft, over something that I STRONGLY FEEL should not be illegal.

They just won't leave us alone (fail)

Details on the latest one here:

http://forum.oldos.org/viewtopic.php?t=2770

But, basically, the point is -- kudos to linode + the planet for not taking us down, and letting us take the stuff down on our own. Just because DMCA allows you to, doesn't mean you should screw your customers, and obviously, TP + Linode understand this.

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Jay Faulkner
http://oldos.org

funny how there screwing me on this topic right now

Under the DCMA, if Linode don't comply with a takedown notice they may be seen as liable for any copyright infringement or other actions of their clients. If Linode do comply, they are immune.

Therefore, Linode needs to balance the risk of losing a good customer with the risk of persecution if the don't comply. If they refuse a takedown notice, it probably means they're pretty certain the complaint is baseless - if they are in any doubt they'd have to comply.

The good news is that if the takedown notice was bogus you can take whoever sent it to court, and probably even sue from the lost revenue.

This is the way I understand it anyway, and I'm not a lawyer nor am I related to Linode other than being a customer.

The DMCA does not require an instant takedown. From section 512.C.1.C of the DMCA, a service provider must merely "act expeditiously" to avoid liability. As such, most service providers give a period of something like 24 to 48 hours for a customer to deal with the complaint before taking action themselves.

As for the situation where the takedown notice is bogus, you don't need to go to court. IANAL and I'm going on what I understand for this one, but you can simply send a counter-notice, and, if the service provider removed access to the allegedly infringing content because of the takedown, the service provider is required to re-enable access to the content. If the copyright holder still feels that their initial claim is valid, they must pursue the matter in court.

The DMCA takedown notice cannot force anyone to take down a piece of content. It only services as just that, a notice. It provides a means for service providers to avoid legal liability, but the counter-notice system exists for situations in which the copyright status is in dispute.