4 ms·

Can you use the DMCA in this way?

by Aloha 7y ago

greglindahl 7y ago
The DMCA is easy to abuse without any consequences. There's no known case of anyone ever being legally sanctioned for filing a DMCA takedown, even when it involved lies such as assertions of copyright ownership that were clearly untrue.
- ikeboy 7y ago
  Depends on what your criteria is. Google settled for 25k with someone who submitted fake notices to YouTube. Given that most litigation ends before a decision, it's likely there's been other private settlements. More broadly than just DMCA, but here's a partial list of successful cases: https://www.courtlistener.com/docket/4226764/dynamic-designs-distribution-incorporated-v-nalin-manufacturing-llc/ https://www.courtlistener.com/docket/4226764/dynamic-designs... awarded declaratory judgement and 37k in attorney fees for a false claim made to eBay (see docket 38) >On November 11, 2011, Mr. Nalin filed a “VeRO complaint with eBay asserting that the Dynamic Designs speaker adapter infringed Nalin’s trademark rights.” https://courts.state.md.us/sites/default/files/import/appellate/unreportedopinions/2017/2556s15.pdf https://courts.state.md.us/sites/default/files/import/appell... 150k jury award of punitive damages, reduced by appeals court to 75k, for a false Amazon complaint of counterfeiting https://casetext.com/case/alexander-binzel-corporation-v-nu-tecsys-corporation https://casetext.com/case/alexander-binzel-corporation-v-nu-... really old case not involving the Internet, but a $4 million jury award reduced by the district court to $2.34 million+interest for false claims of counterfeiting
  - greglindahl 7y ago
    Given the large number of attempts at legal sanctions which have all failed, I'm not so sure that an out-of-court settlement is that interesting. So yes, that's what I think is important. Edit: I'm having a hard time keeping up with your edits, can you stop editing at some point? You've added 3 links about counterfitting. The DMCA only applies to copyrights, not trademarks or patents.
    - ikeboy 7y ago
      I think I only did one edit to add the cases, won't edit that comment any more. I did disclaim that those are broader than DMCA. I'm well aware of the distinctions. You're looking only for final judgements? I have a handful where a judge ordered the DMCA notice to be retracted and ordered them not to refile it, and then the case settled, presumably on favorable terms. I agree DMCA cases seem to be harder to win than trademark/patent abuse.
      - greglindahl 7y ago
        If you're aware of the distinctions, then why are you bringing up irrelevant trademark / patent / counterfeiting cases? A required retraction is not much of a legal sanction. I love having interesting discussions about this topic, but this discussion isn't one.
        ikeboy 7y ago
        >A required retraction is not much of a legal sanction. It gives somewhat of a hint about the nature of the settlement, which in most cases is private. There do seem to be a decent number of settlements; my guess is the most egregious cases all settle, and the ones that move forward are harder to win.
    - ikeboy 7y ago
      https://www.courtlistener.com/recap/gov.uscourts.nynd.113766/gov.uscourts.nynd.113766.49.0.pdf https://www.courtlistener.com/recap/gov.uscourts.nynd.113766... here's another recent case awarding $86k for false DMCA notices. Here's one from 2014 https://www.courtlistener.com/recap/gov.uscourts.cacd.581417/gov.uscourts.cacd.581417.33.0.pdf https://www.courtlistener.com/recap/gov.uscourts.cacd.581417... >Since Curtis repeatedly alleged that Defendants knew that the takedown notices contained false infringement allegations, she adequately pleaded all of § 512(f)’s elements.
- pickdenis 7y ago
  Here is an example where the DMCA notice was claimed fraudulent and some money was awarded to the party that was hit by it[1]. [1]: https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Automattic,_Inc._and_Oliver_Hotham_v._Nick_Steiner https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A...
  - greglindahl 7y ago
    "default judgment"
- ikeboy 7y ago
  https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold,_Inc https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold....
pickdenis 7y ago
There seems to be legal precedent for holding GitHub liable for distributing software that encourages piracy according to MGM v Grokster[1]. Unless I'm reading that incorrectly, if they can prove that the software "promotes" the infringement, the claim will stand. [1] https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd.#Opinion_of_the_Court https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,...
- throwaway2048 7y ago
  That doesn't mean its subject to the DMCA
- greglindahl 7y ago
  MGM vs Grokster is different than Someone vs Github vs Popcorn time. There's an extra level of indirection in there.
  - pickdenis 7y ago
    I'm not convinced the courts will see much of a difference between "company (Grokster) that encourages easy p2p piracy through its software" and "company (GitHub) that publicly hosts software that promotes easy p2p piracy".
    - greglindahl 7y ago
      That's certainly possible. But it's important to note that it's not a direct precedent. You'd lose points in law school for that.
- URSpider94 7y ago
  No. The maintainers of Popcorn Time might be able to be held accountable, but GitHub is a platform. As long as GitHub follows the take-down process laid out by the DMCA, they have what is called "safe harbor", which means that they are immunized from claims for copyright infringement.
  - 7y ago

Can you use the DMCA in this way?

by Aloha 7y ago

Can you use the DMCA in this way?

The DMCA is easy to abuse without any consequences. There's no known case of anyone ever being legally sanctioned for filing a DMCA takedown, even when it involved lies such as assertions of copyright ownership that were clearly untrue.

ikeboy 7y ago
Depends on what your criteria is. Google settled for 25k with someone who submitted fake notices to YouTube. Given that most litigation ends before a decision, it's likely there's been other private settlements. More broadly than just DMCA, but here's a partial list of successful cases: https://www.courtlistener.com/docket/4226764/dynamic-designs-distribution-incorporated-v-nalin-manufacturing-llc/ https://www.courtlistener.com/docket/4226764/dynamic-designs... awarded declaratory judgement and 37k in attorney fees for a false claim made to eBay (see docket 38) >On November 11, 2011, Mr. Nalin filed a “VeRO complaint with eBay asserting that the Dynamic Designs speaker adapter infringed Nalin’s trademark rights.” https://courts.state.md.us/sites/default/files/import/appellate/unreportedopinions/2017/2556s15.pdf https://courts.state.md.us/sites/default/files/import/appell... 150k jury award of punitive damages, reduced by appeals court to 75k, for a false Amazon complaint of counterfeiting https://casetext.com/case/alexander-binzel-corporation-v-nu-tecsys-corporation https://casetext.com/case/alexander-binzel-corporation-v-nu-... really old case not involving the Internet, but a $4 million jury award reduced by the district court to $2.34 million+interest for false claims of counterfeiting
- greglindahl 7y ago
  Given the large number of attempts at legal sanctions which have all failed, I'm not so sure that an out-of-court settlement is that interesting. So yes, that's what I think is important. Edit: I'm having a hard time keeping up with your edits, can you stop editing at some point? You've added 3 links about counterfitting. The DMCA only applies to copyrights, not trademarks or patents.
  - ikeboy 7y ago
    I think I only did one edit to add the cases, won't edit that comment any more. I did disclaim that those are broader than DMCA. I'm well aware of the distinctions. You're looking only for final judgements? I have a handful where a judge ordered the DMCA notice to be retracted and ordered them not to refile it, and then the case settled, presumably on favorable terms. I agree DMCA cases seem to be harder to win than trademark/patent abuse.
    - greglindahl 7y ago
      If you're aware of the distinctions, then why are you bringing up irrelevant trademark / patent / counterfeiting cases? A required retraction is not much of a legal sanction. I love having interesting discussions about this topic, but this discussion isn't one.
      - ikeboy 7y ago
        >A required retraction is not much of a legal sanction. It gives somewhat of a hint about the nature of the settlement, which in most cases is private. There do seem to be a decent number of settlements; my guess is the most egregious cases all settle, and the ones that move forward are harder to win.
  - ikeboy 7y ago
    https://www.courtlistener.com/recap/gov.uscourts.nynd.113766/gov.uscourts.nynd.113766.49.0.pdf https://www.courtlistener.com/recap/gov.uscourts.nynd.113766... here's another recent case awarding $86k for false DMCA notices. Here's one from 2014 https://www.courtlistener.com/recap/gov.uscourts.cacd.581417/gov.uscourts.cacd.581417.33.0.pdf https://www.courtlistener.com/recap/gov.uscourts.cacd.581417... >Since Curtis repeatedly alleged that Defendants knew that the takedown notices contained false infringement allegations, she adequately pleaded all of § 512(f)’s elements.
pickdenis 7y ago
Here is an example where the DMCA notice was claimed fraudulent and some money was awarded to the party that was hit by it[1]. [1]: https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Automattic,_Inc._and_Oliver_Hotham_v._Nick_Steiner https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A...
- greglindahl 7y ago
  "default judgment"
ikeboy 7y ago
https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold,_Inc https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold....

pickdenis 7y ago

There seems to be legal precedent for holding GitHub liable for distributing software that encourages piracy according to MGM v Grokster[1]. Unless I'm reading that incorrectly, if they can prove that the software "promotes" the infringement, the claim will stand. [1] https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd.#Opinion_of_the_Court https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,...

throwaway2048 7y ago
That doesn't mean its subject to the DMCA
greglindahl 7y ago
MGM vs Grokster is different than Someone vs Github vs Popcorn time. There's an extra level of indirection in there.
- pickdenis 7y ago
  I'm not convinced the courts will see much of a difference between "company (Grokster) that encourages easy p2p piracy through its software" and "company (GitHub) that publicly hosts software that promotes easy p2p piracy".
  - greglindahl 7y ago
    That's certainly possible. But it's important to note that it's not a direct precedent. You'd lose points in law school for that.
URSpider94 7y ago
No. The maintainers of Popcorn Time might be able to be held accountable, but GitHub is a platform. As long as GitHub follows the take-down process laid out by the DMCA, they have what is called "safe harbor", which means that they are immunized from claims for copyright infringement.
- 7y ago