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The following changes should be made to DMCA: 1. Forbid delegation of enforcement to third parties. If you’re the copyright holder, you or your actual attorney

• dlgeek 6y ago
  4. If a DMCA counter-claim is made, rather than provide the contact information to the claimant, the hosting provider shall retain the information and provide it directly to a court only if a lawsuit is actually brought.
• ikeboy 6y ago
  1. There's no reason to prohibit agent relationships, as long as liability attaches to the rights owner. 2. Strict liability is a good idea, but the exact amount should be up to discretion of the court. Some cases are more egregious than others. 3. This needs to be a ratio. If thousands of complaints are valid, it should require more than 3 mistaken ones. And the penalty is too harsh. Instead, they should be required to actually sue to enforce their copyright, instead of filing complaints.
  • bargl 6y ago
    3. That's a great idea and something similar could be used on youtube videos and demonitization / takedowns.
  • ikeboy 6y ago
    I also think once these fixes are implemented, that the same should apply to trademark and patent infringement notices. Those also see widespread abuse, it's just not as prominent because the targets are small businesses.
    • _jal 6y ago
      How does that work? As far as I'm aware, there is nothing in the law that looks even vaguely like the DMCA notice-and-takedown regime for patents or trademarks. I do agree with you that there are a number of abusive legal games used to farm small businesses.
      • ikeboy 6y ago
        There's nothing in the law currently, correct. I believe a law similar to DMCA, but with some more protections as above, should be passed applying to accusations of patent and trademark infringement.
  • cortesoft 6y ago
    Yeah, #3 sounds like an invitation for abuse... keep submitting work designed to trick rights holders into submitting claims until you get three. If you have infinite chances, you will eventually get them to strike 3 invalid claims.
    • ikeboy 6y ago
      I wrote https://medium.com/@corporatebullies/why-the-shop-safe-act-is-a-mistake-and-how-to-fix-it-f7149963e0d https://medium.com/@corporatebullies/why-the-shop-safe-act-i... in part to point out a related issue in regards to a proposed bill. Rigid three strikes laws are almost never appropriate.
    • tehwebguy 6y ago
      Can rights holders be tricked into committing perjury? Seems like they‘d have to do this on their own with no prompt from anyone else.
      • tspiteri 6y ago
        They can be made to be convicted of perjury. If you have enough trials, you're going to be falsely convicted a few times.
        • tehwebguy 6y ago
          Sure but not at all what we are talking about here
      • cortesoft 6y ago
        Upload thousands of infringing videos of their content, and then start mixing in slight variations, and then content that appears to be infringing, but isn’t. If you post enough copyrighted things, eventually they will accidentally request a non-violating thing be taken down.
      • cortesoft 6y ago
        > Can rights holders be tricked into committing perjury? If I could interrogate your as long as I wanted, I am sure I could get you to perjure yourself three times. Keep asking slightly varied questions until I get you to answer similar questions two different ways.
  • pdonis 6y ago
    > There's no reason to prohibit agent relationships But the relationship between Casio and YouTube in this instance is not an agent relationship. Casio isn't hiring YouTube to handle a complaint for them. They're just using the DMCA to bully YouTube into taking down the video. YouTube is not Casio's agent. What should happen is that Casio should have to file a lawsuit directly against the person who posted the video on YouTube; if it prevails in such a lawsuit, the court could then order YouTube to take down the video as part of its judgment. But unless and until that happens, YouTube would simply not be involved at all.
    • ikeboy 6y ago
      You're just saying that the DMCA notice system should be abolished. But the system was established for a compelling purpose. Firstly, it provides a safe harbor to YouTube - nobody can sue YouTube for hosting infringing content if they comply with the DMCA. This is good. In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order, and this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content, and force the rights owner to sue for every piece of content.
      • pdonis 6y ago
        > You're just saying that the DMCA notice system should be abolished. I think the entire DMCA should be abolished. > it provides a safe harbor to YouTube Why should YouTube have a safe harbor over and above making users who post content provide an affirmation, valid in a court of law, that they are the rightful owners of the content? Any prudent provider of hosting for content to random people on the Internet would do this. If the answer is that YouTube couldn't possibly do this for all of the millions of people who want to post content, how is that anything but YouTube's problem? Why should a draconian law be put in place simply to allow them to avoid having to do proper due diligence? Or to allow companies like Casio who want to bully people to be able to skip having to actually file a lawsuit? > In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order No, we'd have to say that, once YouTube shows the court the legally valid affirmation it got from the user, such a suit would be dismissed. Which means, in practice, that when YouTube's lawyers sent the lawyers for whoever was complaining (Casio in this case) a copy of that legally valid affirmation, Casio's lawyers would tell Casio that they had no chance of winning a lawsuit and they should drop it. And if Casio tried to sue regardless, any reasonable judge would dismiss the suit and tell Casio to stop wasting the court's time (if the judge didn't decide to slap a fine on them for a frivolous lawsuit). > this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content Which would then bring the obvious next question: how did you confirm that the someone else was the rightful owner of all the content? And the answer "we didn't" would mean the infringing website owner would lose the lawsuit.
  • the8472 6y ago
    > 3. This needs to be a ratio. If thousands of complaints are valid, it should require more than 3 mistaken ones. Perverse incentive: Pad your notice ratio by hiring infringers-as-a-service combined with immediate takedown. The requirement to reimburse costs and time for false takedown is a much better approach because it also punishes drawing out the process. The longer it takes the more costly it gets.
    • ikeboy 6y ago
      You already need to pay costs for false notices under 512(f). It's just hard to enforce.
• Silhouette 6y ago
  If you don't like copyright or the DMCA, just say so. Making the risk of an action intended to be less heavyweight than formal legal proceedings so high that even legitimate rightsholders daren't try to enforce their rights is just blatant bias. Yes, DMCA-style takedown notices are used excessively by some actors, and yes there should be consequences for that, perhaps along the lines of losing the privilege for a period of time if their ratio of successful cases falls below a certain level. However, given how bad certain major hosting sites already are at responding to legitimate DMCA takedowns or their international counterparts from small rightsholders (been there, done that), the changes you propose would stack the deck even further towards the people who wilfully infringe and then straight-up lie about it in their counter-notices. Ultimately, unless you have the means and funding to bring a serious legal action internationally, these takedown laws have limited value anyway, but at least they don't actively act against the true rightsholder in cases of flagrant abuse.
• trhway 6y ago
  >1. Forbid delegation of enforcement to third parties. If you’re the copyright holder, you or your actual attorney may be the only ones to file a complaint. The copyright holder is solely responsible for such DMCA complaints. if i remember correctly several years ago a copyright troll case was shot down by the judge on the grounds that [IANAL] the copyright law doesn't have the "right to sue" which the troll had supposedly bought from the copyright holder, and the ruling was something like that the troll doesn't have standing and the actual copyright holder should be the plaintiff.
• JoshTriplett 6y ago
  Just repeal the thing. The only good part of the DMCA was the safe harbor provision; everything else should just be thrown out as irreparably bad.
  • ikeboy 6y ago
    Both DMCA notices and counternotices are technically just safe harbors. The whole structure comes from carefully defining a safe harbor that everyone would want without requiring anyone to actually abide by the rules.
• tomxor 6y ago
  I think your suggestions focus too much on monetary repercussions. For businesses this turns into a continuous cost benefit analysis, and the larger the business the larger potential benefit of abusing DMCA claims - it's possible to attempt to balance this with charges relative to the size of the business, but this is still just dancing around a threshold. I think more rights should be on the line, this is more of a qualitative loss on both sides of the equation which is harder to weight in terms of cost benefit... if you abuse rights, you should loose rights, and that goes for business entities too, the larger the company the more to lose, but the more resources they have, so it forces them to be accurate.Your #3rd suggestion is such a right, but doesn't cut it for this example of abuse where the "copyright holder" doesn't hold any relevant copyright... to cover these cases where DMCA is completely inapplicable we need loss of rights at the individual and entity level rather than works, e.g: 1. Risk of loss of the right for the _business_ entity to make _any_ future DMCA complaints against the defendant. i.e The defendant would be legally allowed to infringe on the businesses copyrighted works in _future_ if they desired. This is a really good deterrent of missuse because it causes claims to cut both ways - you don't need money and lawyers to make things backfire, it's automatic. 2. Loss of right to the individual making the complaint. Individuals submitting these complaints should take some degree of responsibility, if they are knowingly perjuring themselves then they should lose their personal rights to submit DMCAs for any business - this pushes them back towards individualized thinking rather than hiding behind the demands of their superiors. To simply enforce either of these without some kind of centralised bar, once an entity has been banned a second strike could automatically become a criminal act.
• swiley 6y ago
  Under the current dmca invalid complaints are actually serious (purgery?) but it’s never enforced. Most of the issues really come from Google’s pathological behavior with YouTube.