6 ms·

"Rightsholders, unlike what the directive says, do not have to justify their initial requests to block content, but only have to respond once a user challenges

"Rightsholders, unlike what the directive says, do not have to justify their initial requests to block content, but only have to respond once a user challenges the blocking of one of their uploads." I wonder if the law will allow for any penalties or restrictions against a rightsholder who "mistakenly" claims that every piece of user-uploaded media on a website is infringing their copyright. Presumably a rightsholder could be a company (or individual) based anywhere in the world, and therefore would face no legal risk in making such "mistakes". (A creative lawyer might attempt to use fraud or "hacking" laws against such a rightsholder, but might have difficulty bringing them to court). Some of the rightsholder's claims may even be completely valid, meaning that the hosting website couldn't afford to just disregard all their claims.

progval 7y ago
> I wonder if the law will allow for any penalties or restrictions against a rightsholder who "mistakenly" claims that every piece of user-uploaded media on a website is infringing their copyright. It does not mention any. (ref: mostly page 31 of https://www.legifrance.gouv.fr/content/download/16062/162304/version/1/file/plf_mice1927829L_cm_5.12.2019.pdf https://www.legifrance.gouv.fr/content/download/16062/162304... , and also other relevant sections found by looking for the words "téléversé"/"téléverser", which mean "upload")
- MayeulC 7y ago
  Then, couldn't you pose as a copyright owner and submit a takedown request on these legislators' personal or official content? Let them have a taste of their own medecine. I wonder how a politician that supported the initiative would react if they had their campaign videos systematically taken offline?
  - pferde 7y ago
    You would just be adding headaches to the PR drones working for that politician. I doubt the politician himself would ever know about it happening. These people are usually behind several layers of separation from real world.
    - hithereagain 7y ago
      Don't give up already ;-)
  - BlueTemplar 7y ago
    I'm suddenly very tempted to do that...
loeg 7y ago
Are there any penalties for rightsholders filing completely spurious DMCA takedown notices in the US? I'm not asking rhetorically, I'm curious and don't recall if the long-standing US law has any kind of recourse here. (Anecdotally, I haven't heard of any party ever being punished for DMCA takedown notices, and I've definitely heard of spurious notices.)
- bcrosby95 7y ago
  Yes there are. Note however that e.g. most YouTube "takedowns" aren't DMCA takedowns though, they are YouTube's own copyright controls.
  - s1k3b8 7y ago
    > Yes there are. What are they?
    - thetinguy 7y ago
      https://www.aclu.org/other/text-digital-millennium-copyright-act-dmca https://www.aclu.org/other/text-digital-millennium-copyright...
  - loeg 7y ago
    What are the penalties, and has any business ever been punished by them? (I wasn't asking about Youtube.)
    - wahern 7y ago
      17 USC S 512(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. -- Actual damages isn't much of deterrence, though, considering the typical scenario. Proving actual damages is costly and the ratio of typical damage amounts (nil to moderate) to litigation costs makes it an unattractive option. The level of abuse at which a court may penalize a party independent of a statutory provision is quite high, so that's not a meaningful deterrent, either, though the situation is so bad there have been some high-profile cases. For real deterrence you'd need statutory damages, similar to statutory damages for copyright infringement. But Fair Use is such a muddied area of law that litigation costs might still make it unattractive to pursue statutory damages for most people. It's all kind of moot in the context of Youtube because most copyright disputes happen through Youtube's own internal policies and mechanisms, which are mostly controlled by the terms of Youtube's private contracts. The best solution is twofold: 1) reform copyright by circumscribing copyrightable subject matter and clarifying fair use, and 2) make self-hosting of content easier, more in line with the late 1990s utopic vision of everybody as their own publisher--as opposed to the current situation where Youtube, Facebook, etc are the new publishers and individuals remain confined to content creation.
user5994461 7y ago
One simple way to think of it is that such mistakes are basic fraud. There are already laws to cover this in every country, whether this entails fines or damages or prison. However it's mostly inapplicable in practice. Neither regulating agencies nor private parties have the resources or the will to go against the (many) abusers. Even if they did, laws and the legal systems are muddy across countries, not a lot could be done with offenders half way across the world. By the way while we're on this, "copyright" doesn't exist as such in France.
- greglindahl 7y ago
  In the US, many people have tried and everyone has failed to ever cause a penalty for an abuser. So I wouldn't agree with your simple way, because it literally never works.
  - pas 7y ago
    Was there any high-profile case that made its way to at least Federal appeals level? Or maybe the Supreme Court?
    - user5994461 7y ago
      Not aware of one for copyright. Noting however there was one recently for a patent troll, CloudFlare vs Blackbird Tech. It invalidated hundreds of patents from the abusing company and was upheld in the US court of appeal at the Federal level. Next, CloudFlare will try to get the owner removed from the bar. I think it's comparable, although patent law is better codified than copyright. The internet and youtube are recent creations. Youtube was founded in 2005 and didn't care about copyright from the beginning. It took a decade for abuse to get there, it might take another decade for the legal system to adjust, but it will adjust eventually.
      - greglindahl 7y ago
        That's not comparable at all. Patent trolls send legal threats and sometimes file lawsuits. DMCA abusers do neither.
msla 7y ago
> I wonder if the law will allow for any penalties or restrictions against a rightsholder who "mistakenly" claims that every piece of user-uploaded media on a website is infringing their copyright. It presumably will once some small-time company copyright strikes a big company's media, or, equivalently, some pressure group tries to censor speech it considers harmful (same-sex relationships, media they consider blasphemous) using the copyright strike as a weapon. Once Disney or some big French content owner gets their hand slapped a few times, the law will be brought into line.

progval 7y ago

> I wonder if the law will allow for any penalties or restrictions against a rightsholder who "mistakenly" claims that every piece of user-uploaded media on a website is infringing their copyright. It does not mention any. (ref: mostly page 31 of https://www.legifrance.gouv.fr/content/download/16062/162304/version/1/file/plf_mice1927829L_cm_5.12.2019.pdf https://www.legifrance.gouv.fr/content/download/16062/162304... , and also other relevant sections found by looking for the words "téléversé"/"téléverser", which mean "upload")

MayeulC 7y ago
Then, couldn't you pose as a copyright owner and submit a takedown request on these legislators' personal or official content? Let them have a taste of their own medecine. I wonder how a politician that supported the initiative would react if they had their campaign videos systematically taken offline?
- pferde 7y ago
  You would just be adding headaches to the PR drones working for that politician. I doubt the politician himself would ever know about it happening. These people are usually behind several layers of separation from real world.
  - hithereagain 7y ago
    Don't give up already ;-)
- BlueTemplar 7y ago
  I'm suddenly very tempted to do that...

loeg 7y ago

Are there any penalties for rightsholders filing completely spurious DMCA takedown notices in the US? I'm not asking rhetorically, I'm curious and don't recall if the long-standing US law has any kind of recourse here. (Anecdotally, I haven't heard of any party ever being punished for DMCA takedown notices, and I've definitely heard of spurious notices.)

bcrosby95 7y ago
Yes there are. Note however that e.g. most YouTube "takedowns" aren't DMCA takedowns though, they are YouTube's own copyright controls.
- s1k3b8 7y ago
  > Yes there are. What are they?
  - thetinguy 7y ago
    https://www.aclu.org/other/text-digital-millennium-copyright-act-dmca https://www.aclu.org/other/text-digital-millennium-copyright...
- loeg 7y ago
  What are the penalties, and has any business ever been punished by them? (I wasn't asking about Youtube.)
  - wahern 7y ago
    17 USC S 512(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. -- Actual damages isn't much of deterrence, though, considering the typical scenario. Proving actual damages is costly and the ratio of typical damage amounts (nil to moderate) to litigation costs makes it an unattractive option. The level of abuse at which a court may penalize a party independent of a statutory provision is quite high, so that's not a meaningful deterrent, either, though the situation is so bad there have been some high-profile cases. For real deterrence you'd need statutory damages, similar to statutory damages for copyright infringement. But Fair Use is such a muddied area of law that litigation costs might still make it unattractive to pursue statutory damages for most people. It's all kind of moot in the context of Youtube because most copyright disputes happen through Youtube's own internal policies and mechanisms, which are mostly controlled by the terms of Youtube's private contracts. The best solution is twofold: 1) reform copyright by circumscribing copyrightable subject matter and clarifying fair use, and 2) make self-hosting of content easier, more in line with the late 1990s utopic vision of everybody as their own publisher--as opposed to the current situation where Youtube, Facebook, etc are the new publishers and individuals remain confined to content creation.

user5994461 7y ago

One simple way to think of it is that such mistakes are basic fraud. There are already laws to cover this in every country, whether this entails fines or damages or prison. However it's mostly inapplicable in practice. Neither regulating agencies nor private parties have the resources or the will to go against the (many) abusers. Even if they did, laws and the legal systems are muddy across countries, not a lot could be done with offenders half way across the world. By the way while we're on this, "copyright" doesn't exist as such in France.

greglindahl 7y ago
In the US, many people have tried and everyone has failed to ever cause a penalty for an abuser. So I wouldn't agree with your simple way, because it literally never works.
- pas 7y ago
  Was there any high-profile case that made its way to at least Federal appeals level? Or maybe the Supreme Court?
  - user5994461 7y ago
    Not aware of one for copyright. Noting however there was one recently for a patent troll, CloudFlare vs Blackbird Tech. It invalidated hundreds of patents from the abusing company and was upheld in the US court of appeal at the Federal level. Next, CloudFlare will try to get the owner removed from the bar. I think it's comparable, although patent law is better codified than copyright. The internet and youtube are recent creations. Youtube was founded in 2005 and didn't care about copyright from the beginning. It took a decade for abuse to get there, it might take another decade for the legal system to adjust, but it will adjust eventually.
    - greglindahl 7y ago
      That's not comparable at all. Patent trolls send legal threats and sometimes file lawsuits. DMCA abusers do neither.

msla 7y ago

> I wonder if the law will allow for any penalties or restrictions against a rightsholder who "mistakenly" claims that every piece of user-uploaded media on a website is infringing their copyright. It presumably will once some small-time company copyright strikes a big company's media, or, equivalently, some pressure group tries to censor speech it considers harmful (same-sex relationships, media they consider blasphemous) using the copyright strike as a weapon. Once Disney or some big French content owner gets their hand slapped a few times, the law will be brought into line.