How a single DMCA notice took down 1.45 million education blogs

Massive takedown over 20-item questionnaire was "ham fisted," says lawyer.

 by Jon Brodkin

Web hosting firm ServerBeach recently received a Digital Millennium Copyright Act (DMCA) violation notice from Pearson, the well-known educational publishing company. The notice pertained to Edublogs, which hosts 1.45 million education-related blogs with ServerBeach, and it focused on a single Edublogs page from 2007 that contained a questionnaire copyrighted by Pearson. ServerBeach informed Edublogs about the alleged violation, and Edublogs says it quickly took down the linked content.

Instead of calling the matter settled, though, ServerBeach took Edublogs' servers offline last Wednesday, temporarily shutting off all 1.45 million blogs, according to Edublogs. ServerBeach confirms taking all of the Edublogs offline, telling Ars that the outage lasted for "roughly 60 minutes before we brought them back online and confirmed their compliance with the DMCA takedown request."

As you might expect, ServerBeach and Edublogs have slightly different accounts of how it all happened.

The lights go out

Edublogs pays $6,954.37 to ServerBeach each month for hosting, and it was delighted with the company's service—until last week. Edublogs founder and CEO James Farmer wrote that he was stunned at "how quickly and proactively ServerBeach responded to Pearson's lawyers, as opposed to how they deal with one of their better customers (we've been with them for years and years, ok we're no WordPress.com—another one of their customers—but $75k+ [per year] has to count for something right?)."

Farmer posted his complaint to his blog Wednesday, the day of the outage, and it started receiving wider attention today with an article in TechDirt. Although Edublogs as a whole is back online, the particular blog that kicked off this mess has been marked as spam and is unavailable.

With Edublogs being based in Australia and ServerBeach based in the US, the time difference led to some middle-of-the-night fireworks at Edublogs. "Basically our sysadmin and CTO watched, in horror, live as our Web servers were shut down one-by-one and then we spent the next hour e-mailing, calling, and generally freaking out (it was around 3am for me; they are in the US) and through that we were able to get back up," Farmer told Ars via e-mail today. "If they hadn't been there, and we hadn't done that, it [the shutdown] would have been indefinite!"

In his blog, Farmer explained that the infringing material from 2007 was a reprint of "Beck's Hopelessness Scale," a 20-item self-evaluation questionnaire published in 1974 which Pearson sells for $120. The teacher who wrote that blog post apparently uploaded the questionnaire as a file (still available in Google's cache) to Edublogs' servers, then included a link to the document as part of a blog post containing a lesson plan related to suicide and self-harm.

After Edublogs was informed of the problem by ServerBeach, the company "figured that whether or not we liked it Pearson were probably correct about it," Farmer wrote. Edublogs thus took the appropriate action to make sure "the content was no longer available, and informed ServerBeach."

However, ServerBeach noticed that Edublogs still had the file in its Web server cache, and so it pulled the entire site offline even though the file in question was no longer easily accessible to the public. The October 10 shutdown came, Farmer said, less than 12 hours after ServerBeach provided Edublogs with this DMCA notice:

Farmer later found out that ServerBeach had also contacted his firm 10 days previously through their automated system, but "needless to say it either wasn't sent or we didn't get it, but they figured that they'd just shut down our servers regardless without doing something simple, like calling any of the three numbers for us they have on file."

ServerBeach, in response to our questions, offers a different account.

The view from ServerBeach

ServerBeach told us that Edublogs was in fact aware of the first DMCA notice. "ServerBeach received the first DMCA notice for this alleged infringement on September 26th, 2012 which was resolved by the customer within 24 hours of notification," ServerBeach GM Dax Moreno said in an e-mailed statement. "ServerBeach received the second notice for the same alleged infringing content on October 8th, 2012 which was not resolved/responded to, so a second notification e-mail was sent October 9th, 2012 which was also not responded to by the customer."

ServerBeach said the additional notice on October 8 came "because the same alleged infringing content was once again made available on their system despite the fact that it had already been removed due to the prior notice." ServerBeach further said that Edublogs uses "a failover system that allowed Web traffic to still reach the allegedly infringing material."

The company also confirmed that all of the blogs hosted by Edublogs were taken offline.

"Unfortunately, we have no control or insight into their website/application so this meant that all of their blogs were subsequently impacted when we disabled this portion of their solution," Moreno wrote.

ServerBeach offered more details on its inability to target certain webpages for deletion, saying that it "is a dedicated, DIY hosting service which means that our customers have/maintain direct control over their own websites, applications and databases. When faced with these types of situations, ServerBeach is limited to only working with the resources that it has control over (network level systems, physical server hardware, networking devices, etc.). This means we cannot access a customer's website, application, or database and actively make changes to it on their behalf."

"Ham-fisted"

Still, taking down entire servers containing a million and a half blogs over an alleged copyright violation on just one page was an overreaction, according to intellectual property attorney Evan Brown. He confirmed that DMCA rules don't require anything close to such a response—particularly when the customer was working to take down the infringing content itself.

"It's pretty hard to believe that a hosting provider would be quite this ham-fisted as to take an entire network offline over one piece of content," Brown told Ars via e-mail. "The DMCA certainly does not require such drastic measures. Quite the contrary, actually. The statute requires copyright owners to identify with some particularity the content alleged to infringe and for intermediaries to remove or disable access to that content. There's nothing in there requiring whole sites to be taken down over one piece of infringement."

Edublogs is not exactly a "rogue site" when it comes to copyright, either. Besides the fact that the Australian company took down the infringing content in this specific case, Edublogs has its own DMCA policy and has developed its own software to kill "splog," or spam blog content. At Edublogs, they "invariably get a bunch of e-mails every day complaining about copyright issues" and take down content when the complaints are legitimate, Farmer explained.

ServerBeach says it wants to make things right. In a comment posted on Farmer's blog, Moreno wrote on Thursday, "I am disappointed that we find ourselves in this situation with you since we’ve enjoyed a great relationship up until this point. I very much want to get us back on the path of customer goodness with you and I think I have some options to share with you that can do just that."