3 ms·

>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

by 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
  - mokus 7y ago
    Wow. A bit of a digression here but it appears they actually consider email a valid avenue of legal service? That blows my mind. I don’t even check my work email every 18 hours, and I haven’t looked through my home email in 3 or 4 years except to find specific messages I knew were coming.
    - ikeboy 7y ago
      Different courts have ruled differently on that issue. Note that it's mainly applicable to foreign defendants, and you'd have to show that you can't serve them through other channels. See https://blog.ericgoldman.org/archives/2019/05/court-rejects-service-of-process-via-amazon-messaging-noco-v-chang.htm https://blog.ericgoldman.org/archives/2019/05/court-rejects-... for a court finding otherwise on a similar case. If you're running a business, there's different expectations.
  - Semaphor 7y ago
    > 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. a) I’m not sure they can even sue currently, isn’t the only thing illegal misrepresenting that you have the right you claim? b) Even if they could, as you say, no real benefit c) The change would mean that just the threat of getting sued for malicious DMCA notices would make the companies sending them better at actually having a case. Currently, there is no risk at all shooting with cluster bombs when sending notices. Barely any risk using DMCA to prevent speech. That is what my proposal would take away.
    - ikeboy 7y ago
      a) USC 512(f) makes it illegal to misrepresent that something is infringing. Not considering fair use is included, per Lenz v. Universal Music Corp. c) To do that, you'd need to make suing easier. I don't see how your proposal does that.
  - Keverw 7y ago
    Reminds me of a case with Second Life. Someone went to DMCA virtual horse food and the horses would die, so the company got an injunction not allowing Linden Lab to process those DMCA's while it was ligated. https://en.wikipedia.org/wiki/Amaretto_Ranch_Breedables,_LLC_v._Ozimals,_Inc https://en.wikipedia.org/wiki/Amaretto_Ranch_Breedables,_LLC.... Seems like virtual worlds dealing with the DMCA is complicated, and even if you restore it due to a counter notice process seems like things can break due it... Then I know I was reading before some companies just delete things instead of disabling the content, so they can't even restore it. Maybe you have an object that includes a item bought from the marketplace and linked it(for people not familiar with SL, sorta like gluing or grouping multiple 3D objects together to become one larger 3D object) to your item, wonder if they just remove the entire object even if 1 part was covered by the DMCA? and then modifying objects, etc probably changes the signature used to detect it... And I know people have used DMCA to troll and mess with competitors businesses. and not sure if the DMCA even allows you to verify people are who they say they are when submitting them, someone could use TOR and say they are the content owner even if they aren't from my understanding... I think they should require a Photo ID and picture of themselves to process a DMCA, but It's probably illegal to ask? You need a Photo ID to do almost anything else though. I know the though the DMCA was made back in the early days of the internet where people ran their own servers before massive sites with user generated content, seems like it needs reformed.
labawi 7y ago
Did he actually use DMCA? AFAIK Youtube has it's own system and doesn't typically deal with DMCA. If you are required to do something by law, you can't just ignore (bad cases of) it, and call it case closed.
- ikeboy 7y ago
  It was DMCA notices, yes. DMCA doesn't require them to take it down. It just removes their safe harbor from liability if they don't. If YouTube is confident that a notice is BS, they can just ignore it.
  - notyourday 7y ago
    I would be highly surprised if that's the way it worked at youtube because that's not the way it works in other players: There's an takedown API/dashboard access to which is given to large content producers ( networks, large studios, transmitters, broadcasters, rights holders ). It is them who triggers the takedown action and selects the "reason" which triggers an automated action by the platform. Most of the "content had been taken down by mistake" comes not from internal system but rather from other parties having access to the takedown API.
    - ikeboy 7y ago
      That's separate. It's called content ID. But the case I mentioned above was by someone who did not have access to content ID and was just submitting fraudulent DMCA notices. See also https://www.eff.org/deeplinks/2015/11/youtube-backs-its-users-new-fair-use-protection-program https://www.eff.org/deeplinks/2015/11/youtube-backs-its-user...

by ikeboy 7y ago

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
- mokus 7y ago
  Wow. A bit of a digression here but it appears they actually consider email a valid avenue of legal service? That blows my mind. I don’t even check my work email every 18 hours, and I haven’t looked through my home email in 3 or 4 years except to find specific messages I knew were coming.
  - ikeboy 7y ago
    Different courts have ruled differently on that issue. Note that it's mainly applicable to foreign defendants, and you'd have to show that you can't serve them through other channels. See https://blog.ericgoldman.org/archives/2019/05/court-rejects-service-of-process-via-amazon-messaging-noco-v-chang.htm https://blog.ericgoldman.org/archives/2019/05/court-rejects-... for a court finding otherwise on a similar case. If you're running a business, there's different expectations.
- Semaphor 7y ago
  > 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. a) I’m not sure they can even sue currently, isn’t the only thing illegal misrepresenting that you have the right you claim? b) Even if they could, as you say, no real benefit c) The change would mean that just the threat of getting sued for malicious DMCA notices would make the companies sending them better at actually having a case. Currently, there is no risk at all shooting with cluster bombs when sending notices. Barely any risk using DMCA to prevent speech. That is what my proposal would take away.
  - ikeboy 7y ago
    a) USC 512(f) makes it illegal to misrepresent that something is infringing. Not considering fair use is included, per Lenz v. Universal Music Corp. c) To do that, you'd need to make suing easier. I don't see how your proposal does that.
- Keverw 7y ago
  Reminds me of a case with Second Life. Someone went to DMCA virtual horse food and the horses would die, so the company got an injunction not allowing Linden Lab to process those DMCA's while it was ligated. https://en.wikipedia.org/wiki/Amaretto_Ranch_Breedables,_LLC_v._Ozimals,_Inc https://en.wikipedia.org/wiki/Amaretto_Ranch_Breedables,_LLC.... Seems like virtual worlds dealing with the DMCA is complicated, and even if you restore it due to a counter notice process seems like things can break due it... Then I know I was reading before some companies just delete things instead of disabling the content, so they can't even restore it. Maybe you have an object that includes a item bought from the marketplace and linked it(for people not familiar with SL, sorta like gluing or grouping multiple 3D objects together to become one larger 3D object) to your item, wonder if they just remove the entire object even if 1 part was covered by the DMCA? and then modifying objects, etc probably changes the signature used to detect it... And I know people have used DMCA to troll and mess with competitors businesses. and not sure if the DMCA even allows you to verify people are who they say they are when submitting them, someone could use TOR and say they are the content owner even if they aren't from my understanding... I think they should require a Photo ID and picture of themselves to process a DMCA, but It's probably illegal to ask? You need a Photo ID to do almost anything else though. I know the though the DMCA was made back in the early days of the internet where people ran their own servers before massive sites with user generated content, seems like it needs reformed.

labawi 7y ago

Did he actually use DMCA? AFAIK Youtube has it's own system and doesn't typically deal with DMCA. If you are required to do something by law, you can't just ignore (bad cases of) it, and call it case closed.

ikeboy 7y ago
It was DMCA notices, yes. DMCA doesn't require them to take it down. It just removes their safe harbor from liability if they don't. If YouTube is confident that a notice is BS, they can just ignore it.
- notyourday 7y ago
  I would be highly surprised if that's the way it worked at youtube because that's not the way it works in other players: There's an takedown API/dashboard access to which is given to large content producers ( networks, large studios, transmitters, broadcasters, rights holders ). It is them who triggers the takedown action and selects the "reason" which triggers an automated action by the platform. Most of the "content had been taken down by mistake" comes not from internal system but rather from other parties having access to the takedown API.
  - ikeboy 7y ago
    That's separate. It's called content ID. But the case I mentioned above was by someone who did not have access to content ID and was just submitting fraudulent DMCA notices. See also https://www.eff.org/deeplinks/2015/11/youtube-backs-its-users-new-fair-use-protection-program https://www.eff.org/deeplinks/2015/11/youtube-backs-its-user...