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Answers to Frequently Asked Questions
Q. Who? What? Where? Why?
We are a Switzerland based internet service provider focused on shared and dedicated server hosting for clients who demand that their provider actually be possessed of a spine (or at least be a member of the Vertebrata subphylum).
Starting before the passage of the Digital Millennium Copyright Act ("DMCA") in the United States it has been a trend in intellectual property jurisprudence to support broken business models. Current law leverages the expensive proposition of defending against civil litigation to browbeat small content creators into submission whenever confronted by prolific litigants. We are pretty sure some examples will spring readily to your mind.
We think that this is simply shameful.
We believe that under the guise of enabling copyright holders to legitimately regulate the use of their intellectual property, the United States, which has exported this doctrine all over the world, has created a serious imbalance in intellectual property law globally. Using the daunting threat of meritless civil litigation creates the sort of chilling effect that would probably be flagrantly unconstitutional if attempted directly by the United States Government. From a distance it almost looks as if a number of big-media lobbyists have root-kitted the United States constitution.
Because most hosting providers deal with thin margins, and because legislation in the United States and elsewhere has made it cheaper to ignominiously freeze, cancel or boot clients rather than stand up for the legitimate fair-use of otherwise protected content, it is difficult if not impossible to find hosting providers willing to protect their clients from frivolous or overly aggressive take-down tactics.
We hope to protect the endangered species of "spineful-hosting-provider."
We intend to accomplish our goal by dedicating significant resources to abuse management and support, and spending more time with the many firms that comprise our legal counsel than would otherwise be prudent.
In the end, we hope to become a refuge for any publisher who has hesitated to hit the "publish" button for fear of attracting the attention of a well-resourced, habitual litigator.
On a more personal level, we are a collection of legal-tech nerds with a passion for the freedom of expression in all its forms.
Q. Are you affiliated with Righthaven, LLC?
In no way shape or form...
...well except that we bought their domain at auction.
Righthaven, LLC is a United States based firm in the state of Nevada that amassed some notoriety for aggressively suing bloggers and internet forum commenters at the drop of a hat. In fact, they might fairly be counted among the "prolific litigants" we mentioned in our answer to the previous question.
Initially, we were merely casually interested observers in the legal wrangling that followed and eventually resulted in the auctioning off of the righthaven domain. Once we noticed that, however, we couldn't resist acquiring it.
Q. Why Switzerland?
A rational, just and reasonable legal system, an enlightened approach to intellectual property, a small federal government that has managed to avoid becoming beholden to large special interests and is in any event somewhat toothless, not to mention a traditional sense of the meaning of the word "privacy." There is also a certain charm to being in the midst of the European Union without being in the European Union.
When you think about it closely one might counter by asking: "Where else?"
Our presence in Switzerland is a central part of our offering. Perhaps the most obvious reason is that Switzerland is a "loser pays" jurisdiction in the case of private litigation. This means that, unlike some other jurisdictions, if a plaintiff files suit in Switzerland and loses, that plaintiff typically must cover the prevailing party's costs.
The most obvious counterexample would be the United States, where parties carry their own costs except in exceptional circumstances ("sanctions") which are at the discretion of the court and are rarely granted.
There are many arguments in favor of a legal system in which parties carry their own costs, the primary one being "access." That is, that the cost of "justice" is not out of reach for small plaintiffs. However, when such a system is used, as is increasingly the case in the United States, to bully defendants into unjust or otherwise onerous settlement deals or to generally deny small publishers access to the legal system it becomes increasingly irrational to be an innovator subject to such a regime.
Swiss courts typically require foreign plaintiffs to post bonds against the possibility that they will lose and be liable for the defendant's costs. This at least raises the bar to a rational level we feel is better aligned with the fundamental role small and micro-publishers play in a modern economy.
Finally, Switzerland is only one jurisdiction. We are also in the process of exploring Iceland as a place to deploy our corporate and IT resources and we look forward to potentially offering hosting services from the first jurisdiction to embrace the principles of the International Modern Media Institute.
Q. Am I the sort of client you are looking for?
If you are a blogger and you find yourself sometimes wondering if you should hit the "publish" button on your latest op-ed piece, we are probably your sort of vendor.
If you like to make genuine fair use of copyrighted works as part of commentary–that is, make limited, noncommercial use of works for purposes like criticism, comment, or satire–and you are tired of harassing DMCA and takedown demands that pretend that the fair use doctrine does not exist, we are probably your sort of vendor.
If you manage a large discussion forum and find yourself breaking out in a sweat wondering if a rogue commenter is going to get you sued, we are probably your sort of vendor.
If you spend more time moderating your website than you do producing content, we are probably your sort of vendor.
If you are a individual researcher or a principal in a small analyst firm and worry about the possibility of being hauled into court by the subjects of your critiques, we are probably your sort of vendor.
If you worry that your career would suffer if your right to anonymous free expression is compromised, we are probably your sort of vendor.
If you live in a jurisdiction whose idea of unbridled free expression is that you should tell your interrogator absolutely everything, we are probably your sort of vendor.
Finally, no matter where you are, if you have the arrogant temerity to publish rational criticism of powers larger than yourself, we are probably your sort of vendor. (And please allow us to buy you a beer in person sometime too!)
Q. This sounds great! When can I move my 0day/Torrent/Music Sharing/Hacking Forum onto your platform?
Not ever, actually.
There are many hosting providers who maintain a "no questions asked" policy with respect to their clients and use this approach and lax, evasive or non-existent abuse handling infrastructure to effectively provide a safe-harbor for bad actors. That is not our business model.
Instead, we focus on hosting expression that has traditionally been subjected to frivolous legal threats based on its content. Our approach focuses on our team's wealth of expertise in dealing with high tech abuse and legal issues and our willingness to zealously defend our clients from frivolous, manipulative, abusive or outright fraudulent litigation. Our experience and expertise in issues ranging from fair-use to libel and whistle-blowing protections means we can often gently (and sometimes firmly) remind third parties about the many protections afforded legitimate publishers in these areas.
Often a proactive, responsive and competent abuse management team engaging in an open dialogue and discussion with copyright holders or their legal counsel is all it takes to close what might otherwise escalate into a frivolous suit.
But dialogue isn't always enough. Against this unfortunate possibility we have a second level of defense: In cooperation with our upstream providers in Switzerland we have some of the best free speech counsel in the world on retainer.
We could spend pages singing the praises of our United States based counsel (let's face it, most of the IP litigation in the world emanates from the United States). Instead, we invite you to research their credentials on your own:
Marc J. Randazza of The Randazza Legal Group, scourge of copyright-troll Righthaven, LLC and successful defender of victims of frivolous defamation threats across American, and Kenneth White, Partner at Brown White & Newhouse LLP, former federal prosecutor and current federal criminal defense and First Amendment attorney, who has stepped in to defend bloggers before.
Q. Dude! Aren’t you just chickening out because of the Megaupload indictment?
We're not here to pass judgment on the allegations in the Megaupload indictment. In general we are inclined to be skeptical of government assertions and watchful for abuses of power, as all good citizens (or subjects) ought to be. In addition, we have grave concerns about the exercise of extraterritorial power, its attempts to shut down web sites without due process, and the influence of movie and recording industry lobbyists on both legislation and the criminal justice system.
That said, to the extent allegations in the indictment are true, they represent a business practice we reject and that threatens all of a host's clients. Tacit approval and poor abuse management by internet service providers (either with sinister designs or as a cost cutting measure) is not a feature. It is a serious bug with a huge memory leak that will grow undetected until it has accumulated enough mass to state-change into an Assistant United States Attorney and quantum tunnel said Assistant United States Attorney to the front door of the corporate headquarters (no matter where located) along with padlocks and impressive looking official evidence seals.
Innocent publishers are routinely harmed by such practices as recent events bear out with painful clarity. In fact, the mere appearance of lax abuse handling has the potential to inspire an ambitious prosecutor towards overreach. Once inside the datacenter with a seizure order, poorly trained or overly-aggressive law enforcement on the scene may be prone to pull whole cabinets of hardware in an attempt to shut down just a few customer sites on a host with many thousands of customers.
We are simply not in this to host actually infringing material. We're here to be a spineful host and, as a result, to devote the necessary expertise and resources to separate legitimate infringement claims from meritless, frivolous, and malicious claims calculated to suppress free expression. Whatever the short term gains, playing "fast and loose" in this field is simply not worth it in the long run.
Q. Can I host porn with you guys?
We aren't focused on commercial erotica providers. Commercial providers have very particular and often very thorny requirements and issues specific to that space. For a number of reasons adult sites attract a host of hacking, denial of service and fraudulent activity. These issues demand specialist providers and therefore we typically suggest that adult publishers employ one of the many dedicated adult hosting firms. We maintain good relations with a number of world-class providers who are probably much better able to address the concerns particular to commercially oriented erotica providers than we are.
However, we are more than happy to hear from you and to consult with you to help you design solutions that preserve your freedom of expression. In the end, if we can't help you we probably know someone who can. Drop us a line.
In the case of non-commercial adult content providers we evaluate prospective clients on a case-by-case basis with an eye to being as inclusive as possible.
Q. [My Current Provider Who Shall Remain Nameless] booted me without even so much as listening to my side of the story after I got a baseless takedown notice. Help!
We'd love to.
If you were stuck with a spineless hosting provider who ran for the bunker at the first sign of trouble, or a hosting provider whose idea of "fair use" is their 65 page terms of service document, our exigent migration service will help you get your content onto our platform and running as quickly as possible. It is possible you will never have to experience this sort of nonsense from your hosting provider. Then again, if you do we would be happy to help you.
Q. You know, you guys are sort of expensive.
Yes, we are.
If you are looking for discount hosting there are a number of providers that fit the bill. Unfortunately, you will then have to cope with the fact that these providers and their razor thin margins are willing to spend about 2.3 minutes dealing with an abuse complaint, no matter how frivolous. If this sort of thing doesn't worry you, then we probably aren't the provider for you.
If, however, you are looking for a premium service with a built-in provision for our internal legal expenses and a commitment to rise to the defense of your publishing rights we might be just what the doctor ordered.
We are very sorry to be the bearers of the bad news that by pushing the burden of infringement liability onto hosting providers and conscripting them into the role of internet censors, several national legislatures have imposed a "spineful hosting tax" on everyone on the planet, but they have. We will be more than happy to be put out of business when this nonsense is repealed. Until then, the only way for us to be spineful is to be a premium service.
Remember also, that though you may never need it, someone we host will. We think that paying a bit more for hosting is worth the effect we hope to have. Perhaps our jumping into the pool will prompt other providers to compete with us and end the reign of meritless takedown-notice terror.
Q. Will you defend me in court? / I've been sued. Will you provide legal advice?
We aren't licensed to practice law in... well actually we aren't licensed to practice law anywhere. We will, however, doggedly resist attempts to identify, squelch, intimidate, slander, or otherwise harass our clients. We will grudgingly (but decidedly) deploy our U.S., Swiss and (perhaps eventually) Icelandic counsel or work with our upstream provider's counsel in support of these efforts. With any luck opportunistic plaintiffs will, if slowly, begin to learn to seek skittish, invertebrate prey with herd mentalities elsewhere. And this, in the end, is what it is all about.
In addition, our counsel in the United States and elsewhere are specialists in this area. Often they will be able to make recommendations for competent counsel to represent our clients and part of our commitment is to work closely with our clients' counsel to form a united front in the defense of free expression. Try asking your existing provider's Tier I offshore, outsourced customer-service call-center for that.
Q. Who are your tech partners?
In Switzerland our parent is OrtCloud, the quiet sort of provider you probably never heard of. OrtCloud specializes in enterprise hosting for large publishers and, combined with a penchant for freedom of expression, has an independent streak that meshes quite nicely with our own. Some of the largest commentary and independent analysis sites in the world are hosted by OrtCloud. We are proud to be part of the family.
We are also pleased to use easyDNS as our registrar and anycast-DNS provider. easyDNS has a long history of providing clueful, resilient service as a registrar and DNS provider and we are proud to be working with them.
Q. Why don't you have a 99.99%/99.999%/99.9999%/99.9999999999% SLA guarantee?
We regard almost all such agreements as pure nonsense. However many 9's are to the right of a decimal place on such agreements, compensation for the client for downtime is almost always limited by the fine-print to credit for future services or eliminated entirely by extensive exemptions for everything under the sun that could cause an outage.
We simply have no interest in playing that game and we think our clients are too smart to be fooled by it in any event.
You have our commitment that we will always do our best to achieve 100% uptime. You also can be assured we will probably fail in this endeavor over the long term. We won't promise you the world and then inflict the death of a thousand fine-print paper cuts on you when you try to claim it.
What we will promise is that where something was our fault we will own up to it quickly and try to make our clients happy. We're pretty confident in the infrastructure we've put together so far, and where it is not perfect will we strive to constantly improve it.
If you still require high availability services or contractual SLA guarantees with teeth we can obviously recommend our upstream provider, OrtCloud, that specializes in enterprise level hosting. You can reach them via email@example.com
Q. I don't need hosting, but I want to support your work. How can I help?
We are glad you asked.
Though the details are not final yet we have begun the process of endowing a charitable foundation dedicated to supporting the defense of fair-use rights for small publishers.
The organization would provide financial support to cover legal and administrative costs related to defending fair-use and similar publishing rights, particularly in jurisdictions designed to make the defense of such actions expensive. We are committed to the lowest administrative to program cost ratio possible and the cause of publisher support.
Large publishers have their bullying institutions (like our namesake for instance) ready to attack their smaller rivals. We think it is high time the little guy had something to return their fire with.
In the coming months we intend to enable all of you to contribute directly to the fight to level the playing field, or at least smooth it a bit, for bloggers, digital publishers, whistleblowers and website operators everywhere.
Q. But doesn't the Electronic Frontier Foundation do that?
And we are big fans of the EFF and most of us support the organization personally. The EFF has made great strides in this area in particular. Still, we came together united by the belief that hosting providers must join with like-minded counsel to extend the ideals of freedom of expression to the digital realm. We are focused on a small slice of the digital-liberty sphere that the EFF also probably occupies: hosting for content providers. Unlike the EFF, however, this is all that we do.
Q. Why do you only offer PayPal as a payment option?
Trust us, it is not that we are rabid PayPal fans. Visa and Mastercard in Switzerland are very particular and merchant accounts can take weeks or (in some cases) months for approval. We've applied for a merchant credit card processing account with local Swiss providers, but rather than wait for the approval process we fired up PayPal.
Q. That's great, but it looks like SOPA/PIPA has been watered down or defeated and I'm just not worried anymore.
"Don't get cocky, kid."
It probably bears mentioning that publisher's rights have been under attack, and rather effective attack at that, since long before SOPA was a glimmer in a lobbyist's jaundiced eye. Don't be fooled. Even without SOPA or its inbred spawn PIPA, there are a number of ways to attack and intimidate small players. SOPA and PIPA are only the latest and greatest.
Q. What are these awards I hear about?
Righthaven.com began life as a tool of Las Vegas based Stephens Media and other large publishers and effectively manipulated the US legal system to threaten small content creators. The current owners bought the domain for the specific purpose of protecting these smaller content creators. To further our cause and promote awareness, each year Righthaven.com will award the Crystal Jellyfish to that person or organization who, in their cowardice or by way of their rank and noxious sycophancy, did the most damage to digital press freedoms in the past year. By shining a bright light on those who seek to destroy hard-won digital rights, we intend to shame and embarrass those who put profit above their customers. Nominations are accepted throughout the year with several finalists and a winner announced yearly. Obviously, the inaugural winner for the 2011 award period could be none other than GoDaddy.com, LLC for their unfortunate support of SOPA/PIPA legislation in the United States. Details on the award and the benefits flowing to members of the Most Flaccid Order of the Jellyfish (composed of all the former winners of the Crystal Jellyfish) will follow shortly.
Do you have a harrowing tale of fair-use spinelessness? We'd like to hear about it. Nominate the purported malefactor for a Crystal Jellyfish by emailing our nominations account: crystaljellyfish@right[PIPA]haven.com (kill the [PIPA] to bypass our spam censor).