3 ms·

>Among many things I hate about the DMCA, it's that hosts have basically no option other than to respond to takedown requests by actually taking down the conten

by ikeboy 7y ago

>Among many things I hate about the DMCA, it's that hosts have basically no option other than to respond to takedown requests by actually taking down the content in question, for fear of litigation. That's the entire point. A DMCA takedown request is supposed to lead to the content being taken down. The person who uploaded it can send a counternotice, which will lead to the content being put back up if no lawsuit is filed. What would you change about the system? Should rights owners have no recourse short of litigation to get their content taken down?

Semaphor 7y ago
> What would you change about the system? 3 strikes and you are out. Take down 3 obviously (probably decided by a judge) non-infringing things and you lose the ability to send takedowns.
- dmitriid 7y ago
  Or, same, but with increasing penalties. 3 strikes, can't send notices for a week. 3 more strikes, a month. 3 more strikes, a year
  - Wowfunhappy 7y ago
    Keep in mind that if a judge has to get involved, it would take a long time for the penalties to actually take effect. The idea of increasing penalties is a good one, but the lowest level needs to be an order of magnitude more significant, and ditto for the subsequent steps.
- ikeboy 7y ago
  >Take down 3 obviously (probably decided by a judge) non-infringing things and you lose the ability to send takedowns. Once it reaches this point, the service provider would likely stop accepting the notices anyway. See e.g. the recent lawsuit by Youtube against Brady, who sent a bunch of bogus notices. Once they realized that, they stopped accepting the notices. There's hardly a critical mass of takedowns by people who've been found 3 times by a judge to have sent fraudulent takedowns.
  - Semaphor 7y ago
    > There's hardly a critical mass of takedowns by people who've been found 3 times by a judge to have sent fraudulent takedowns. Because those rarely go in front of a judge. Torrentfreak [0] gets many takedown notices where for example their reporting on a leak gets targeted with a DMCA request. If those companies had to fear someone challenging these (in this example an easy win) and making them lose their ability to send them out at all, that would change a lot. [0]: https://torrentfreak.com/all-dmca-notices-filed-against-torrentfreak-in-2019-were-bogus-191231/ https://torrentfreak.com/all-dmca-notices-filed-against-torr... > In previous years we’ve received erroneous complaints from the likes of Amazon, Electronic Arts, Disney, Entertainment One, Vertigo Films, Magnolia Pictures, NBCUniversal, Paramount, and even BBC Worldwide. This year we can add more. > According to Google’s Transparency Report, in 2019 Google received a further 11 DMCA takedown notices targeting our domain, sent on behalf of Columbia Pictures, Sony Pictures, and sundry others. All of them were completely bogus.
    - ikeboy 7y ago
      > If those companies had to fear someone challenging these (in this example an easy win) and making them lose their ability to send them out at all, that would change a lot. Why hasn't torrentfreak sued? Presumably because it's not an easy win and doesn't produce real benefits for them. I'm struggling to see how any of that would change under your proposal. For what it's worth, judges have occasionally issued injunctions preventing people from filing claims, under the DMCA and otherwise. See e.g. https://www.courtlistener.com/docket/16599762/home-it-inc-v-wen/ https://www.courtlistener.com/docket/16599762/home-it-inc-v-... ("ORDERED that the Defendant Wupin Wen, no later than eighteen (18) hours after service of this Order on her via email to trademark@cn-ip.cn, trynow@cn-ip.cn, and bzkjuk@126.com: a. Notify Amazon that the trademark owner’s allegations of infringement against HOMEIT are withdrawn and that Amazon should re-list the involved products to its website as soon as possible; and b. Refrain from filing or otherwise communicating any allegations of infringement by HOMEIT to any third party, at minimum, for the duration of the instant litigation relative to Saganizer branded products." docket 21 https://www.courtlistener.com/docket/4160397/design-furnishings-inc-v-zen-path-llc/ https://www.courtlistener.com/docket/4160397/design-furnishi... (older case from 2010), "Defendant is therefore enjoined from notifying eBay that defendant has copyrights in the wicker patio furniture offered for sale by plaintiff and that plaintiff’s sales violate those copyrights. " docket 29 https://www.courtlistener.com/docket/16630192/california-beach-co-llc-v-du/ https://www.courtlistener.com/docket/16630192/california-bea... "THEREFORE, DU AND ALL PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH DU, ARE TEMPORARILY RESTRAINED from taking down, based on any alleged copyright infringement, from Facebook and Instagram, or any other service provider’s website, CBC’s online content or product line. Du is temporarily not permitted to file any further takedown notices with Facebook, Instagram, or any other service provider’s website as to CBC’s online content or product line. Any current and operative takedown notices in effect that were filed by Du as to CBC are restrained, and are to be disregarded by the online service provider. Accordingly, and specifically, Facebook (Report #2576187715997707) and Instagram (Report #1407615876061304) are directed to disregard Du’s takedown notice and to reinstate CBC’s online content during the period of this Order. " docket 22
stingraycharles 7y ago
There currently is no penalty for sending bogus DMCA requests, and as such it encourages content owners of just sending gazillions of (unjustified) takedown requests. This is a major hole in the current law.
- ikeboy 7y ago
  >(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. USC 512 (f)
  - clarry 7y ago
    That is toothless in preventing corps (with money) from abusing individuals (who don't have the money to start litigation). Also, from what I hear, many implementations of DMCA do not give the individual enough information to take action against false claims. EDIT: see for example https://news.ycombinator.com/item?id=22211087 https://news.ycombinator.com/item?id=22211087
    - ikeboy 7y ago
      >That is toothless in preventing corps (with money) from abusing individuals (who don't have the money to start litigation). This is a problem with unequal access to the legal system, not with the law. >Also, from what I hear, many implementations of DMCA do not give the individual enough information to take action against false claims. It's pretty simple to get the actual information in a lawsuit. Subpoena the service provider for the complete notice sent. In most cases a lawsuit isn't needed. If you receive a false complaint and file a counternotice, the content gets restored 10-14 days later if there's no lawsuit filed.
kgwxd 7y ago
"Should rights owners have no recourse short of litigation to get their content taken down?" Yes
mr_toad 7y ago
> which will lead to the content being put back up if no lawsuit is filed. Maybe, if you’re lucky. More often it will be ignored.
- ikeboy 7y ago
  Got a citation on that? Counternotices being ignored are rare from what I've heard.
  - judge2020 7y ago
    Ya, especially on GitHub, GitHub always puts the repository back up once they review the counter-notice. The people that sent the original DMCA must show proof they are pursuing a lawsuit to get it taken back down. See #8: https://help.github.com/en/github/site-policy/dmca-takedown-policy#a-how-does-this-actually-work https://help.github.com/en/github/site-policy/dmca-takedown-...

by ikeboy 7y ago

Semaphor 7y ago

> What would you change about the system? 3 strikes and you are out. Take down 3 obviously (probably decided by a judge) non-infringing things and you lose the ability to send takedowns.

dmitriid 7y ago
Or, same, but with increasing penalties. 3 strikes, can't send notices for a week. 3 more strikes, a month. 3 more strikes, a year
- Wowfunhappy 7y ago
  Keep in mind that if a judge has to get involved, it would take a long time for the penalties to actually take effect. The idea of increasing penalties is a good one, but the lowest level needs to be an order of magnitude more significant, and ditto for the subsequent steps.
ikeboy 7y ago
>Take down 3 obviously (probably decided by a judge) non-infringing things and you lose the ability to send takedowns. Once it reaches this point, the service provider would likely stop accepting the notices anyway. See e.g. the recent lawsuit by Youtube against Brady, who sent a bunch of bogus notices. Once they realized that, they stopped accepting the notices. There's hardly a critical mass of takedowns by people who've been found 3 times by a judge to have sent fraudulent takedowns.
- Semaphor 7y ago
  > There's hardly a critical mass of takedowns by people who've been found 3 times by a judge to have sent fraudulent takedowns. Because those rarely go in front of a judge. Torrentfreak [0] gets many takedown notices where for example their reporting on a leak gets targeted with a DMCA request. If those companies had to fear someone challenging these (in this example an easy win) and making them lose their ability to send them out at all, that would change a lot. [0]: https://torrentfreak.com/all-dmca-notices-filed-against-torrentfreak-in-2019-were-bogus-191231/ https://torrentfreak.com/all-dmca-notices-filed-against-torr... > In previous years we’ve received erroneous complaints from the likes of Amazon, Electronic Arts, Disney, Entertainment One, Vertigo Films, Magnolia Pictures, NBCUniversal, Paramount, and even BBC Worldwide. This year we can add more. > According to Google’s Transparency Report, in 2019 Google received a further 11 DMCA takedown notices targeting our domain, sent on behalf of Columbia Pictures, Sony Pictures, and sundry others. All of them were completely bogus.
  - ikeboy 7y ago
    > If those companies had to fear someone challenging these (in this example an easy win) and making them lose their ability to send them out at all, that would change a lot. Why hasn't torrentfreak sued? Presumably because it's not an easy win and doesn't produce real benefits for them. I'm struggling to see how any of that would change under your proposal. For what it's worth, judges have occasionally issued injunctions preventing people from filing claims, under the DMCA and otherwise. See e.g. https://www.courtlistener.com/docket/16599762/home-it-inc-v-wen/ https://www.courtlistener.com/docket/16599762/home-it-inc-v-... ("ORDERED that the Defendant Wupin Wen, no later than eighteen (18) hours after service of this Order on her via email to trademark@cn-ip.cn, trynow@cn-ip.cn, and bzkjuk@126.com: a. Notify Amazon that the trademark owner’s allegations of infringement against HOMEIT are withdrawn and that Amazon should re-list the involved products to its website as soon as possible; and b. Refrain from filing or otherwise communicating any allegations of infringement by HOMEIT to any third party, at minimum, for the duration of the instant litigation relative to Saganizer branded products." docket 21 https://www.courtlistener.com/docket/4160397/design-furnishings-inc-v-zen-path-llc/ https://www.courtlistener.com/docket/4160397/design-furnishi... (older case from 2010), "Defendant is therefore enjoined from notifying eBay that defendant has copyrights in the wicker patio furniture offered for sale by plaintiff and that plaintiff’s sales violate those copyrights. " docket 29 https://www.courtlistener.com/docket/16630192/california-beach-co-llc-v-du/ https://www.courtlistener.com/docket/16630192/california-bea... "THEREFORE, DU AND ALL PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH DU, ARE TEMPORARILY RESTRAINED from taking down, based on any alleged copyright infringement, from Facebook and Instagram, or any other service provider’s website, CBC’s online content or product line. Du is temporarily not permitted to file any further takedown notices with Facebook, Instagram, or any other service provider’s website as to CBC’s online content or product line. Any current and operative takedown notices in effect that were filed by Du as to CBC are restrained, and are to be disregarded by the online service provider. Accordingly, and specifically, Facebook (Report #2576187715997707) and Instagram (Report #1407615876061304) are directed to disregard Du’s takedown notice and to reinstate CBC’s online content during the period of this Order. " docket 22

stingraycharles 7y ago

There currently is no penalty for sending bogus DMCA requests, and as such it encourages content owners of just sending gazillions of (unjustified) takedown requests. This is a major hole in the current law.

ikeboy 7y ago
>(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. USC 512 (f)
- clarry 7y ago
  That is toothless in preventing corps (with money) from abusing individuals (who don't have the money to start litigation). Also, from what I hear, many implementations of DMCA do not give the individual enough information to take action against false claims. EDIT: see for example https://news.ycombinator.com/item?id=22211087 https://news.ycombinator.com/item?id=22211087
  - ikeboy 7y ago
    >That is toothless in preventing corps (with money) from abusing individuals (who don't have the money to start litigation). This is a problem with unequal access to the legal system, not with the law. >Also, from what I hear, many implementations of DMCA do not give the individual enough information to take action against false claims. It's pretty simple to get the actual information in a lawsuit. Subpoena the service provider for the complete notice sent. In most cases a lawsuit isn't needed. If you receive a false complaint and file a counternotice, the content gets restored 10-14 days later if there's no lawsuit filed.

kgwxd 7y ago

"Should rights owners have no recourse short of litigation to get their content taken down?" Yes

mr_toad 7y ago

> which will lead to the content being put back up if no lawsuit is filed. Maybe, if you’re lucky. More often it will be ignored.

ikeboy 7y ago
Got a citation on that? Counternotices being ignored are rare from what I've heard.
- judge2020 7y ago
  Ya, especially on GitHub, GitHub always puts the repository back up once they review the counter-notice. The people that sent the original DMCA must show proof they are pursuing a lawsuit to get it taken back down. See #8: https://help.github.com/en/github/site-policy/dmca-takedown-policy#a-how-does-this-actually-work https://help.github.com/en/github/site-policy/dmca-takedown-...