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No, it doesn't. For example, in a DMCA takedown notice the only thing asserted under penalty of perjury is that you are, or are authorized to act on behalf of,

No, it doesn't. For example, in a DMCA takedown notice the only thing asserted under penalty of perjury is that you are, or are authorized to act on behalf of, a copyright holder. And YouTube doesn't even use the DMCA system; it uses its own separate terms-of-service-governed system.

chris_wot 9y ago
Yes, it does. 17 U.S. Code § 512(f) states: (f) Misrepresentations.—Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. --- This has been tested in Online Policy Group v. Diebold, Inc. - and Diebold lost and had to pay $125,000 to Online Policy Group. https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold,_Inc https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold....
- ubernostrum 9y ago
  The Diebold case is basically the only time anyone's ever made that work, though, because the bar for it is so high. It's not enough to prove "they made a complaint and it turned out it wasn't their stuff". You have to prove that they knew, which is next to impossible unless you basically have a notarized statement from them saying "Yes, I was aware it was wrong and did it anyway", and the payout is a pittance. Meanwhile, the idea that DMCA notices carry some sort of super-strict ruinous penalty for errors remains completely false. And YouTube -- as I said in the original comment -- uses a separate takedown system governed by their terms of service, so the whole thing is moot.
  - chris_wot 9y ago
    Well, that's not actually what you said. You actually said: > in a DMCA takedown notice the only thing asserted under penalty of perjury is that you are, or are authorized to act on behalf of, a copyright holder And the Diebold case didn't have anyone with a notarized statement that you speak about. I don't think what you are saying is necessarily supported by the facts of that case.
    - ubernostrum 9y ago
      It is true that the only thing asserted under penalty of perjury in a DMCA notice is that you are or are authorized to act on behalf of a copyright holder. The rest of the notice is not made under penalty of perjury. The notarized statement comment was hyperbole to make a point about how hard it is to prove, sufficiently for a court, that someone "knowingly" and "materially" misrepresented information in a DMCA notice in order to trigger 512(f). In the Diebold case you had the perfect storm, because Diebold's lawyers basically admitted to the court that they knew they were using the DMCA not for copyright enforcement but to take down something that embarrassed them. That is literally what it took to get a judge to nail someone for DMCA abuse. And even then: the judge only found that they knowingly/materially misrepresented for a subset of the material, and they only paid out $125k, which is literally nothing to a company of Diebold's size. Meanwhile, DMCA abuse remains routine and rampant today, in large part because it's next to impossible to get someone penalized for it.
- Zak 9y ago
  "Knowingly" is probably too high a bar for this to be a significant deterrent. A mental state of negligence or recklessness would make it much more effective. Knowingly misrepresenting that material is infringing to get it removed probably ought to be subject to criminal penalties.

chris_wot 9y ago

Yes, it does. 17 U.S. Code § 512(f) states: (f) Misrepresentations.—Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. --- This has been tested in Online Policy Group v. Diebold, Inc. - and Diebold lost and had to pay $125,000 to Online Policy Group. https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold,_Inc https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold....

ubernostrum 9y ago
The Diebold case is basically the only time anyone's ever made that work, though, because the bar for it is so high. It's not enough to prove "they made a complaint and it turned out it wasn't their stuff". You have to prove that they knew, which is next to impossible unless you basically have a notarized statement from them saying "Yes, I was aware it was wrong and did it anyway", and the payout is a pittance. Meanwhile, the idea that DMCA notices carry some sort of super-strict ruinous penalty for errors remains completely false. And YouTube -- as I said in the original comment -- uses a separate takedown system governed by their terms of service, so the whole thing is moot.
- chris_wot 9y ago
  Well, that's not actually what you said. You actually said: > in a DMCA takedown notice the only thing asserted under penalty of perjury is that you are, or are authorized to act on behalf of, a copyright holder And the Diebold case didn't have anyone with a notarized statement that you speak about. I don't think what you are saying is necessarily supported by the facts of that case.
  - ubernostrum 9y ago
    It is true that the only thing asserted under penalty of perjury in a DMCA notice is that you are or are authorized to act on behalf of a copyright holder. The rest of the notice is not made under penalty of perjury. The notarized statement comment was hyperbole to make a point about how hard it is to prove, sufficiently for a court, that someone "knowingly" and "materially" misrepresented information in a DMCA notice in order to trigger 512(f). In the Diebold case you had the perfect storm, because Diebold's lawyers basically admitted to the court that they knew they were using the DMCA not for copyright enforcement but to take down something that embarrassed them. That is literally what it took to get a judge to nail someone for DMCA abuse. And even then: the judge only found that they knowingly/materially misrepresented for a subset of the material, and they only paid out $125k, which is literally nothing to a company of Diebold's size. Meanwhile, DMCA abuse remains routine and rampant today, in large part because it's next to impossible to get someone penalized for it.
Zak 9y ago
"Knowingly" is probably too high a bar for this to be a significant deterrent. A mental state of negligence or recklessness would make it much more effective. Knowingly misrepresenting that material is infringing to get it removed probably ought to be subject to criminal penalties.