Websites are key to business, whether directly through e-commerce,
or indirectly through advertising. And,
they may be at risk. In the blink of an
eye, an ISP or web host (collectively “hosts”) can take down a site based on
mere allegations by a third party---including a competitor. You should understand the dynamics at play.
As a practical matter, hosts make initial takedown
determinations following a complaint of copyright or trademark infringement. What is their
perspective? Bottom line, hosts can incur liability to third parties for customer sites that contain infringing material. To manage that
risk, hosts have: (1) departments and
procedures for fielding third-party complaints; and (2) customer service
agreements granting the hosts wide latitude to make decisions.
Beyond liberal service agreements, the law also makes it very
easy for hosts to err on the side of taking a website down. More specifically, for some types of allegations,
the law provides a “safe harbor” to hosts if they merely take certain steps
after receiving a complaint---even if those steps result in the site being taken down for bogus reasons. With other types
of allegations, there simply is no safe harbor for hosts. In light of this, the $10/year paid by the site owner to
the host may not be incentive enough to avoid a takedown after a complaint. An owner may need quick and convincing legal
representation and advocacy to keep the site up.
So, if hosts have free reign, what can be done in the event
of a wrongful takedown? Third-parties that
initiate the takedowns (by hosts) are at risk.
In the event that the takedown is wrongful, these third parties can be
liable for damages incurred by the website owner, including statutory attorneys’ fees and
costs in some instances.