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Web host Linode’s response to false DMCA notice censored investigative journalism

The DMCA is one of the biggest threats to free speech online.

The growing and multi-faceted problem of internet infrastructure providers as the gatekeepers of what content is allowed on the internet is demonstrated once again in the temporary shutting down of a prominent South African news website.

The crucial role hosts have in the flow and accessibility of data is not lost on anyone looking for an efficient and quick way to block and censor; to make matters worse, these companies often quickly succumb to pressure, putting their business well above any interest of their customers.

In the case of the Mail & Guardian (M&G), its US hosting provider, Linode, proved itself to be a willing participant in what appears to be a classic case of executing DMCA takedown notices under the “shoot first, ask questions later” rule.

The drama started unfolding for the South African news website when one of their investigative articles got flagged as being plagiarized. An intellectual property infringement against it was filed with Linode, who promptly threatened the publisher: either remove the article within 96 hours or have the whole website blocked.

“What would become abundantly clear over the course of numerous emails between the M&G and the company is that Linode was less concerned about whether we had plagiarized or not,” said Beauregard Tromp of M&G.

Act two: a low-profile blog with no relevant previous investigative reporting content apparently copies the M&G story, claiming it as its own, and manipulates the publishing date to suggest it published the report first – and then goes to Linode with the accusation of plagiarism against the news website, demanding that they take the (original) article down.

Why didn’t Linode take a moment to look at the merit of the claim and connect some of these dots? The safest way for hosts to act is to execute and remove any danger of liability from themselves – without taking into account customers and their business interests.

In fact, the M&G, who strongly deny the accusation and decided against complying with the demand, had their website blocked at the height of weekly traffic last Friday; and the site only went up again after the article was removed. Curiously, since the M&G decided to publicly reveal the details of this ordeal, the blog that reported them to Linode changed all bylines on all its stories, including the one central to the seemingly fraudulent takedown request.

“As a US company obligated to comply with the DMCA, Linode policy is to forward any claim regarding the misuse of intellectual property to the customer involved in the dispute, who can then directly respond to the claimant or file a counterclaim,” said a Linode representative.

“Like many others, Linode is often frustrated by the binary nature of the DMCA’s treatment of online content, as the law provides very little flexibility in the realm of intellectual property matters.”

Public interest lawyer Avani Singh said that publishers in reality only have a chance to challenge takedown notices if they remove their content first.

“Commentators have described the DMCA as ‘one of the biggest threats to free speech online’, because the ‘notice and take-down scheme’ fails to provide affected websites with due process before the content is removed,” she said, adding that the DMCA process poses a risk “both to free speech and procedural fairness.”

Infrastructure providers as the internet’s single point of failure

The Mail & Globe eventually reprinted the article on Twitter – and promises to fight on against those forces wishing to silence its investigative journalism. But beyond shady businesses and otherwise bad actors, it may be time for publishers to start recognizing the potential danger posed to them by host. And, perhaps, to start choosing wisely – because, regardless of their inherent weaknesses, not all hosts behave in the same manner, not all countries have the same laws governing them, and, in general, a little research could go a long way.

But there are many other ways in which host can prove to be useful tools, responsive to pressure, to those wishing to stifle the open internet and freedoms, and these ways range from large-scale censorship efforts by states to issues linked to net neutrality.

In fact, hosts and ISPs can be used as the Swiss army knife of censorship: they can block access to websites, block users from accessing the internet, and governments can block entire internet service providers – effectively shutting down the internet.

In addition, there have been rising concerns around privacy, given that your hosts has more of your personal data that and put together – and the question of happens if they decide to “share” or monetize this data.

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