The case that illustrates this issue is the take down of 1.45 million education blogs in October. James Framer, CEO of EduBlogs, noted that "ServerBeach, to whom we pay $6,954.37 every month to host Edublogs, turned off our webservers, without notice, less than 12 hours after issuing us with a DMCA email." He went on to explain what the actual infringement was: "one of our teachers, in 2007, had shared a copy of Beck’s Hopelessness Scale with his class, a 20 question list, totalling some 279 words, published in 1974, that Pearson would like you to pay $120 for." Reading the blog further it turns out that EduBlogs did actually comply with the DMCA request that they received. However, the issue that Pearson had was (a) it was accessible via Google's cache and (b) it was accessible by its Varnish cache. In other words, James Farmer got legally DDoSed: 1.45 million blogs were made unavailable due to ServerBeach rush to comply with the DMCA instead of "calling any of the 3 numbers for us [ServerBeach] have on file".
Edublogs, however, is not the only company to be DDoSed in this manner. Small companies that publish news reports on YouTube or other content sharing sites also face this danger. Take for example Leo Laporte's This Week in Tech (TWIT) new media network, which publishes tech related podcasts and videocasts. The business model of this network resides on him being able to make the video available soon after its airing. Failure to do so will result in the company losing out on ad revenue because the "eyeballs never made it" to the particular show. Consequently, when one of their episodes gets pulled down by Google's robots, or due to request of the copyright holder (as noted here), it jeopardizes the TWIT business model making him another DDoS victim.
From a risk perspective, the risk of such event should be evaluated, especially for businesses that rely on revenues via the distribution of online content. Specifically, the agreement with the third parties that host their content should include provisions that enable them to at least demonstrate compliance prior to be taken down. However, both James Farmer and Leo Laporte have attempted to work with their respective providers to prevent this type of risk. Farmer complied with the request, while Laporte has attempted to contact Google and explain that he is news organization. So this is easier said then done. Laporte hosts the videos on his own servers, however the popularity of YouTube limits the effectiveness of this "backup strategy" (i.e. users won't go to the site to watch the video instead of YouTube). In the end, it may just be an unavoidable cost of relying on such providers.
From a longer-term perspective, it illustrates clash of legacy laws and the capability of the Internet to "network knowledge". This the concept is taken from David Weinbergers's "Too big To Know", who identified how the ability to share, link and debate information on the Internet transforms knowledge into a more fluid state in contrast to the static nature of books. He explains this concept in the following video:
James Farmer implicitly argued this point in his rant against Pearson when he said: "Here’s another idea Pearson, maybe one that you could take from Edublogs, howabout you let this tiny useful list be freely available, and then you sell your study materials / textbooks and other material around that… maybe use Creative Commons Non Commercial Attribution license or similar to make sure you get some links and business." In other words, Pearson has failed to understand this new world of networked knowledge, where a link to the "offending" list would link to other resources that has Pearson has - enriching both Pearson and those using its publications.
