DynDNS Round 2

DynDNS:

We disagree.

Also, please note sections 4 and 11 of our Acceptable Use Policy:
https://www.dyndns.com/about/legal/aup.html

> 1) The site is a news site focused on bittorrent, p2p, and copyright
> law.
[snip]
> The
> site unquestionably has a "fair use" right to make limited
> reproductions in
> order to carry out these journalistic functions.

We found your site to be a simple catalog of illegally distributed
copyright information, thus facilitating those who wish to break the law
by providing them with reviews of the quality of the illegally
distributed material.

> 3) Snapshots from video clips, taken from films or television,
> represent an
> insignificant and degraded fraction of the complete work. They have
> no
> commercial value whatsoever, and could not possibly directly affect
> the
> potential market value for the underlying work.

We believe they failed this aspect as they were provided for the most
part without any commentary or journalism of any kind what so ever. In
rare cases where any significant commentary existed, it was focussed on
the quality of the pirated copy more than the copyrighted work.

We believe the purpose of the screen shots and indeed most of the site
was to show the quality of the illegal copies, thus failing the
commentary exception in US Copyright law.


>
> The site does meet every condition of the test laid out in the law for
> determining whether a legitimate "fair use" reproduction right exists.
> If
> you disagree, I would be interested to hear how you or your lawyers
> interpret the law differently.

We disagree on the grounds of a lack of commentary on the copyright
material itself. The commentary was focussed on the quality of the piracy.


We believe your web site failed the "Fair Use Test" because:
(from http://www.copyright.gov/fls/fl102.html )

1. the purpose and character of the use, including whether such use is
of commercial nature or is for nonprofit educational purposes;

The nature, we believe, was to review and promote the pirated files.

and:

4. the effect of the use upon the potential market for or value of the
copyrighted work.

Promoting piracy causes a potential loss of revenue to the copyright owners.

Additionally, you did host the contents of some of the NFO (info) files
for some of the software torrents out there. Some of these included
cracks and stolen license keys, again, promoting piracy.

Should you wish to pursue this, please note that by creating a DynDNS
account, you agreed to our Acceptable Use Policy in which "DynDNS
retains the right, on DynDNS' sole discretion, to determine whether or
not the Member's conduct is consistent with the letter and spirit of the
AUP and may terminate the Service if the Member's conduct is found to be
inconsistent with the AUP."

Me:

Dear Mr. Chabot,

It appears that things are not headed in a positive direction here, so let me make it clear, if you refuse to negotiate a reasonable compromise to this dispute in good faith, I will sue you.

With regard to Sections 4 and 11 of your Acceptable Use Policy (AUP): blanket indemnifications of responsibility such as these are clearly unconscionable. If I sue you, and you make a motion for dismissal on the basis of these terms, I believe it will almost certainly be denied. Talk to your lawyers for their opinion.

If this matter is decided in court, then the only question will be whether or not your company performed its contractual obligations. The overall content of the site is only relevant as it applies to this question.

The AUP is the contract between your company and myself, but as stated previously, portions of the AUP are clearly unconscionable, and so it will be up to the court to decide which portions are actually applicable to our dispute. Assuming that the blanket indemnities are thrown out, which they almost always are in cases such as this, the question will be whether or not your company acted in good faith, and met its obligation to offer a reasonable level of service for the money I paid you.

It is my belief that your company has acted in bad faith, and has not provided a reasonable service for the price paid.

I believe that you have acted in bad faith on the following grounds: someone from your company initially accessed the site on May 15, 2007, but I was not notified that the site's content was under review, or that this review could potentially result in suspension of my service; subsequently, my service was interrupted on May 23, 2007, without prior notice, even though I clearly could have been notified earlier of whatever activity was taking place that resulted in the suspension of my service. The fact that your company had the site under review for over a week, did not notify me of this, and then unilaterally suspended my service without consulting me, is a clear demonstration that you acted in bad faith, and did not make a reasonable attempt to fulfill your obligation to provide me with the service I paid for.

If you defend yourself with the same argument you have been making – that the site violated your AUP – you will have to make your argument on the basis of Section 12 ("Member Conduct") which defines the "letter" of the AUP that your members are required to abide by. Typically the "letter" of a contract is of far greater interest to a court than its "spirit," so we may as well focus on what the AUP actually says.

We already agree that the site is in no way directly involved in copyright infringement, but you are claiming that the site facilitates this activity. However, your own AUP states that "For purposes of this AUP, facilitation of the illegal distribution of copyrighted materials, through operation of a "hub", "tracker", or other filesharing mechanism, shall be considered identical to the actual illegal distribution of those copyrighted materials." The site in question provides none of the functions defined in your own AUP as constituting "facilitation of illegal distribution of copyrighted materials," so your claim that the site is in direct violation of your AUP, on the grounds stated, cannot be true.

If you intend to make the claim that the site's content did not directly violate your AUP, but that you had a right to terminate my service based on your reasonable belief that the content of the site violated some less specific provision of the AUP, then you will still have to demonstrate that you acted in good faith, and that any other reasonable person would have come to the same conclusion as you did about the content of the site.

As stated previously, it is apparent that you have not acted in good faith. The reasonability of your position, if we cannot reach an agreement, will have to be determined by a court, but it is my personal belief that my position is very strong, and your own is extremely weak (as usual, consult your own lawyers for their opinion on the relative merits of our claims).

Irregardless of the dispute over the site's content, your company has also caused me damages and failed to meet your contractual obligations by serving a "Locked DNS" page from my domain name. This notice is libelous, and obviously malicious in its intent. The serving of this notice from my domain is domain theft, and nothing in your AUP gives you the right to redirect my domain to any IP other than the one specified by myself. This issue will have to be addressed along with the settlement of our other disputes.

These more relevant issues aside, I will also address the claims you have made in your communications with me:

"We found your site to be a simple catalog of illegally distributed
copyright information, thus facilitating those who wish to break the law
by providing them with reviews of the quality of the illegally
distributed material."

It is impossible for myself, or a court, to determine the ultimate motivations of the users of this site. The reasonable approach then is to determine whether the site has substantial non-infringing uses, and whether or not those uses are greater than potentially infringing uses. Since nothing on the site directly contributes to copyright infringement, this question is somewhat mute, but supposing that some minor portion of the site could be construed as contributing to copyright infringement, then there are certainly substantial and far reaching non-infringing uses for the site that would weight against any hypothetically infringing content. These include: use of the site by researchers, law-enforcement, and rights holders to monitor bittorrent activity, use of "forums" for community dialog, original journalistic content, and the use of the site as a medium for political free speech advocating copyright law reform.

"We believe they failed this aspect as they were provided for the most
part without any commentary or journalism of any kind what so ever. In
rare cases where any significant commentary existed, it was focussed [sic] on
the quality of the pirated copy more than the copyrighted work.

We believe the purpose of the screen shots and indeed most of the site
was to show the quality of the illegal copies, thus failing the
commentary exception in US Copyright law."

This argument is completely irrelevant. The snapshots the site provides are protected by "fair use" provisions because, among other reasons, they are part of the news that we provide to our users, and because they in no way diminish the value of the underlying works that they are taken from. This alone is sufficient grounds for the establishment of a "fair use" right.

You argue further that "Promoting piracy causes a potential loss of revenue to the copyright owners," but this argument is also irrelevant, because nothing on our site "promotes" piracy. As a news site, we cannot be held responsible for potentially infringing activity taken independently by the individuals we report on, nor can we be sure that the activity we report on is actually infringing, because most of it takes place outside of the United States, where our laws do not apply, and the legality of much of this activity is an open question, which neither your company nor myself is in a position to accurately judge.

"Additionally, you did host the contents of some of the NFO (info) files
for some of the software torrents out there. Some of these included
cracks and stolen license keys, again, promoting piracy."

I am not aware of any NFO files on the site that contain illegal content. In any case, we provide a mechanism for reporting user uploaded content, and rights holders can always contact us regarding any issues they may have with our content. Even if some NFO files hosted may contain "license keys," it is not clear that this content is actually illegal, and I would have to review any potential claim by a rights holder to determine its veracity. You are not in any position (nor am I) to determine that any content of this nature is illegal, absent a complaint by a rights holder, and the establishment of the validity of that complaint.

As I have stated, these arguments are probably irrelevant to any potential litigated settlement of this dispute. The real question is the AUP, and your conduct.

However, it is my desire to reach a reasonable settlement with your company regarding this dispute.

My position is that the content of the site is legal and non-infringing, and that no reasonable person could come to the conclusion, based upon a complete review of the site's content, that the site's content promotes or facilitates copyright infringement.

I recognize that all litigation entails risk, and that your company may have a reasonable desire to avoid even the slight chance of averse litigation. I don't believe that this is unreasonable, and if you have concluded that you would rather not provide service for my site, I can accept that, as long as I am compensated for my damages, refunded for my payment, and my service is restored until a transfer of the domain to another provider can be completed.

It is imperative that you restore my service, and I will not accept any settlement that does not include a restoration of service.

If this is done as part of a larger agreement to all other disputes regarding the suspension of my service, this can be achieved in a way that indemnifies your company from any further legal action arising from these disputes.

If you would like to negotiate a settlement, please notify me of your intent to do so.