4 ms·

>Considering a fake DMCA carries the same penalty as perjury (correct me if I'm wrong) My understanding is that regrettably you're wrong, definitely at least i

by xoa 8y ago

>Considering a fake DMCA carries the same penalty as perjury (correct me if I'm wrong) My understanding is that regrettably you're wrong, definitely at least in practice if not in theory. First on the theory side of things, Warner Bros at least argued in the countersuit Hotfile filed against them for abuse of takedowns that when it came to the DMCA: >"The DMCA’s language applies only to impersonating a copyright owner or sending notices on their behalf without authorization; mere misidentification of the files being taken down or the works represented therein are at most incorrect ‘statements’." Unfortunately the settlement Hotfile made in the original suit against it by the MPAA also ended its countersuit so Warner Bros arguments were not put to the test. If anyone else knows of a subsequent case that'd be good to read, but I can't remember any. If there's nothing at all then hard to say either way, but there is at least a strong colorable argument that it either doesn't mean what a lot of people think it should period or it's too ambiguous to have any real teeth. And speaking of real teeth anyway, there do not seem to be any fixed consequences for perjury, and I do not think there has ever been a single prosecution for it in the now 20 year history of the law. In fact the sole and only victory of any kind I can remember of even a flagrantly abusive act of political censorship was years when WordPress won a default judgement against "Straight Pride UK" [1] (which had already gone dark of course). Lenz won vs UMC, but I don't think won any actual damages? And further the standard set there was that actual bad faith by the rights holder would need to be shown, which is yet another hurdle. I think only something like Diebold rose to that level. Edit: ubernostrum beat me to it and mentioned Diebold and that perjury is about who you're representing not what you're asserting too. So at the end of the day there just has never seemed to be any significant consequences to abuse (or "mistakes"), and the result has been as would be expected given the incentives and interests involved. ---- 1: https://www.theverge.com/2015/3/9/8175491/wordpress-automattic-wins-dmca-takedown-straight-pride-uk-case https://www.theverge.com/2015/3/9/8175491/wordpress-automatt...

darawk 8y ago
Wouldn't this qualify as impersonating a copyright owner, though?
- xoa 8y ago
  I'm not a lawyer and I honestly don't know exactly how to parse WB's argument there, it really needs to go to trial. If interpreted liberally does it mean that anyone representing any copyright owner at all, so long as they're not lying about who they're representing even if they're completely lying about what they own, passes? I hope not! But I can't tell, it seems like it could if the perjury language is interpreted solely and exclusively to apply to the statement of who is requesting action, not at all about the substance of said action? I would hope it'd go to trial and result in precedent, but from the article it sounds like they settled, which to be clear is totally understandable for a client first perspective. Not everyone wants or can afford to fight the good fight at any expense. But I don't know where that leaves the "perjury" side of things specifically, beyond the same take home we've had for a while: the DMCA's process is too prone too abuse. On the other hand it definitely would appear to be a slam dunk on the bad faith part, but again there don't seem to be any really clear, really significant penalties on that side. Someone who goes through all the massive expense and trouble of challenging it could win 100% of the time, which would mean the content could be reinstated. But can they even get all their expenses back, let alone enough multiplier penalties to deal with missed enforcement or get lawyers interested in doing it on contingency? At some level of abuse courts might have other tools, maybe it can start to get into other higher level laws covering fraud or something, but that seems like it'd be a harder case by definition vs specific language of the direct law in question. Even if it's clearly defeatable, if the cost is high enough that may not matter in practice. One thing though that is always possible is to at least generate political outrage, and in that case the more egregious and the more clearly they get away with it the better. There have in fact been multiple attempts to reform the DMCA in Congress including some really good language, but none of them have gotten through. That doesn't mean it's not worth continuing to bring up when the right examples present themselves that are extra photogenic. I've printed out some excerpts of this and I'm going to send it to my rep and Senators tomorrow along with some other collected concerns and a list of previous legislative efforts. I don't expect any action in an election season but sometimes pebbles add up. All the protection laws we have didn't come out of nowhere and didn't come up with zero opposition from entrenched interests after all.

by xoa 8y ago

darawk 8y ago

Wouldn't this qualify as impersonating a copyright owner, though?

xoa 8y ago
I'm not a lawyer and I honestly don't know exactly how to parse WB's argument there, it really needs to go to trial. If interpreted liberally does it mean that anyone representing any copyright owner at all, so long as they're not lying about who they're representing even if they're completely lying about what they own, passes? I hope not! But I can't tell, it seems like it could if the perjury language is interpreted solely and exclusively to apply to the statement of who is requesting action, not at all about the substance of said action? I would hope it'd go to trial and result in precedent, but from the article it sounds like they settled, which to be clear is totally understandable for a client first perspective. Not everyone wants or can afford to fight the good fight at any expense. But I don't know where that leaves the "perjury" side of things specifically, beyond the same take home we've had for a while: the DMCA's process is too prone too abuse. On the other hand it definitely would appear to be a slam dunk on the bad faith part, but again there don't seem to be any really clear, really significant penalties on that side. Someone who goes through all the massive expense and trouble of challenging it could win 100% of the time, which would mean the content could be reinstated. But can they even get all their expenses back, let alone enough multiplier penalties to deal with missed enforcement or get lawyers interested in doing it on contingency? At some level of abuse courts might have other tools, maybe it can start to get into other higher level laws covering fraud or something, but that seems like it'd be a harder case by definition vs specific language of the direct law in question. Even if it's clearly defeatable, if the cost is high enough that may not matter in practice. One thing though that is always possible is to at least generate political outrage, and in that case the more egregious and the more clearly they get away with it the better. There have in fact been multiple attempts to reform the DMCA in Congress including some really good language, but none of them have gotten through. That doesn't mean it's not worth continuing to bring up when the right examples present themselves that are extra photogenic. I've printed out some excerpts of this and I'm going to send it to my rep and Senators tomorrow along with some other collected concerns and a list of previous legislative efforts. I don't expect any action in an election season but sometimes pebbles add up. All the protection laws we have didn't come out of nowhere and didn't come up with zero opposition from entrenched interests after all.