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I always wondered how it could be legal to automatically send DMCA takedown requests. A DMCA request on a site like Twitter means the post and account are immed

I always wondered how it could be legal to automatically send DMCA takedown requests. A DMCA request on a site like Twitter means the post and account are immediately blocked until the situation is clarified, and that can be a big issue for the user, especially if their livelihood depends on access to this account (I guess a bigger problem if their Google account is blocked due to a DMCA on YouTube). Yet it seems ok to automate this, knowing full well that there will be false positives that could seriously affect people. Sometimes it feels like we eventually got a soft version of Skynet, ruled by robots, except they aren't trying to kill us yet.

PeterisP 6y ago
I believe that many major sites (e.g. Youtube) offer "DMCA-like" service where copyright holders send takedown requests that are not DMCA requests with all the associated requirements and legal consequences for the one who submits false claims. They don't have to honor DMCA-like-but-not-really requests, but they have chosen to do so.
cies 6y ago
The DMCA is against free expression. To ban some expression a court order used to be needed. Now a DMCA request is enough, as long as some party enabling the expression (Twitter in your example) is legally in the US, to effectively ban the expression. The burden of proof is shifted to the expressor. This makes banning expression so much easier. Funny enough the US tax money also paid for research to circumvent this issue, resulting in what we know as the dark web. > except they aren't trying to kill us yet. A lot of people have had their livelihood taken, or greatly reduced, by DMCA.
- mavhc 6y ago
  Counter notice, wait 14 days, content goes back up. Not exactly banned, just delayed
  - jjoonathan 6y ago
    In a highly competitive attention economy under merciless algorithmic control, a 14 day delay is a ban in all but name.
  - LocalH 6y ago
    It would be better if they were required to put the content back up within 24 hours of receiving the counter-notice
    - mavhc 6y ago
      They're waiting for the counter counter notice
buran77 6y ago
> how it could be legal to automatically send DMCA takedown requests Because the ones benefiting from this lobbied their way into getting it. And to extract the most value they implemented automated means of doing it. Not only does this allow easily sending a flood of takedown notices thus discouraging anyone from even thinking of crossing you, it also provides an easy scapegoat in the near impossible situation that the company abusing the system is actually called to answer for the abuse. "It was just a technical mishap". But this isn't a technical problem, it's a corruption problem. And it doesn't have a technical fix, it has a legal one that cannot be applied because of the lobbying (corruption) mentioned earlier. On the other hand most takedown notices aren't actual "DMCA takedown notices". Platforms like YouTube or Twitter simply have an arrangement with the big "content owners" that they will act on such internal notices. That's to shield themselves from incurring costs when unavoidably they will host copyright infringing content that they don't take down. It's easier and safer to take the side of the big content owners than that of the users.
- varispeed 6y ago
  These days corruption is so rife, I am still amazed that whenever ones mentions it as a plausible cause of an event, there is a high chance the opinion will be buried with downvotes. Corrupt governments are one thing, but it is interesting how governments created an impression that corruption is a marginal problem, that it does not exist. Rarely you see anyone charged yet alone convicted and if you see it's rather some little things in the grand scheme of things. Some events are brazenly obvious yet I never hear them ever being investigated. I've been thinking how do you even report something like this if you only have your own suspicions but no hard evidence? How do you even get evidence that e.g. some regulation was bought? (e.g. you can see certain companies listed as party donors or belonging to a family of certain politicians and then you see a regulation going through against expert advice that hugely benefit those companies at the expense of competing businesses, yet even journalists known for being in opposition won't touch the topic).
  - buran77 6y ago
    > governments created an impression that corruption is a marginal problem, that it does not exist. Governments create the impression that small, widespread corruption is the one that counts. The one where you pay a cop to get out of a speeding ticket, or a doctor to get better medical care. They will go out of their way to commission reports that condemn this as the real danger to society while using obscure metrics to support that idea. At the same time they invent a word to use when governments and legislators are involved: lobbying. They write off the corruption happening at high levels even if it's responsible for fundamentally changing how society works in ways that small corruption never could. Laws that weaken the educational system, or employee's rights, that protect corporations, etc. not only are the reason for why most small corruption exists in the first place, they also damage society beyond belief. And the kind of money and favors involved dwarf the GDP of many of those "most corrupt countries in the world". Which is why governments go out of their way to make this look like fair game, it's just lobbying. Getting the "evidence" is next to impossible because of the framework built around this. There are actual laws sending you to prison for giving $50 to a cop to get out of a fine, or the cop for taking it, written by the same people who wrote the law that allows one to pay $50M to a legislator to pass a "favorable" law. Of course there are some nuances that are always the go to for justifying how lobbying isn't bribery but they're all just as solid as saying "beautiful kids, it would be a shame if something... happened to them" is not extortion.
GuB-42 6y ago
In theory, you are liable for damage if you file frivolous DMCA takedowns. In practice, not so much. The problem is not the bots, it is that obvious false positives are not punished as they should.
acdha 6y ago
There are two separate concerns here: 1. Some sites lock accounts on reports rather than just the offending content or have YouTube-style systems which aren’t the DMCA. That’s an indirect problem especially when, as in the latter case, it’s probably a private deal where YouTube avoided lawsuits by agreeing to spare the major holding companies the expense of filing DMCA complaints. 2. The DMCA has penalties for false claims but they’re almost never enforced. This is the best area for reform: if someone’s bot incurred liability for every claim where it misidentified the material or hit a fair use case (e.g. police officers playing music loudly to make YouTube auto-block recordings of them) they would quickly start improving those systems and adding human checks.
- LocalH 6y ago
  It's my understanding that the DMCA's "truth" provision is limited to whether the person is authorized to represent the copyright holder, and not anything to do with the actual infringement claim itself
  - acdha 6y ago
    I am not a lawyer but my understanding is that it’s more than that: see https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 - infringement covers not just that you have copyright but also that the user doesn’t have a valid right to use it, which includes fair use. Diebold lost a case where someone published internal emails and they used the DMCA to try to get them taken offline, and a judge agreed that this was fair use: https://www.eff.org/cases/online-policy-group-v-diebold https://www.eff.org/cases/online-policy-group-v-diebold
    - LocalH 6y ago
      What I'm referring to is that perjury seems to be limited to cases where the claim to represent the copyright holder is unauthorized. One can file any number of DMCA claims on otherwise false grounds (such as fair use, etc), and if the court then chooses to sue upon DMCA appeal, they can cost the user far more than they should be able to, even if the user wins, as long as the person filing the DMCA is authorized by the copyright holder to do so. I would like to see such perjury charges be expanded to situations where it is clear the copyright holder's representative has acted in bad faith regarding whether infringement even happened, or whether it was justified infringement (fair use).

PeterisP 6y ago

I believe that many major sites (e.g. Youtube) offer "DMCA-like" service where copyright holders send takedown requests that are not DMCA requests with all the associated requirements and legal consequences for the one who submits false claims. They don't have to honor DMCA-like-but-not-really requests, but they have chosen to do so.

cies 6y ago

The DMCA is against free expression. To ban some expression a court order used to be needed. Now a DMCA request is enough, as long as some party enabling the expression (Twitter in your example) is legally in the US, to effectively ban the expression. The burden of proof is shifted to the expressor. This makes banning expression so much easier. Funny enough the US tax money also paid for research to circumvent this issue, resulting in what we know as the dark web. > except they aren't trying to kill us yet. A lot of people have had their livelihood taken, or greatly reduced, by DMCA.

mavhc 6y ago
Counter notice, wait 14 days, content goes back up. Not exactly banned, just delayed
- jjoonathan 6y ago
  In a highly competitive attention economy under merciless algorithmic control, a 14 day delay is a ban in all but name.
- LocalH 6y ago
  It would be better if they were required to put the content back up within 24 hours of receiving the counter-notice
  - mavhc 6y ago
    They're waiting for the counter counter notice

buran77 6y ago

> how it could be legal to automatically send DMCA takedown requests Because the ones benefiting from this lobbied their way into getting it. And to extract the most value they implemented automated means of doing it. Not only does this allow easily sending a flood of takedown notices thus discouraging anyone from even thinking of crossing you, it also provides an easy scapegoat in the near impossible situation that the company abusing the system is actually called to answer for the abuse. "It was just a technical mishap". But this isn't a technical problem, it's a corruption problem. And it doesn't have a technical fix, it has a legal one that cannot be applied because of the lobbying (corruption) mentioned earlier. On the other hand most takedown notices aren't actual "DMCA takedown notices". Platforms like YouTube or Twitter simply have an arrangement with the big "content owners" that they will act on such internal notices. That's to shield themselves from incurring costs when unavoidably they will host copyright infringing content that they don't take down. It's easier and safer to take the side of the big content owners than that of the users.

varispeed 6y ago
These days corruption is so rife, I am still amazed that whenever ones mentions it as a plausible cause of an event, there is a high chance the opinion will be buried with downvotes. Corrupt governments are one thing, but it is interesting how governments created an impression that corruption is a marginal problem, that it does not exist. Rarely you see anyone charged yet alone convicted and if you see it's rather some little things in the grand scheme of things. Some events are brazenly obvious yet I never hear them ever being investigated. I've been thinking how do you even report something like this if you only have your own suspicions but no hard evidence? How do you even get evidence that e.g. some regulation was bought? (e.g. you can see certain companies listed as party donors or belonging to a family of certain politicians and then you see a regulation going through against expert advice that hugely benefit those companies at the expense of competing businesses, yet even journalists known for being in opposition won't touch the topic).
- buran77 6y ago
  > governments created an impression that corruption is a marginal problem, that it does not exist. Governments create the impression that small, widespread corruption is the one that counts. The one where you pay a cop to get out of a speeding ticket, or a doctor to get better medical care. They will go out of their way to commission reports that condemn this as the real danger to society while using obscure metrics to support that idea. At the same time they invent a word to use when governments and legislators are involved: lobbying. They write off the corruption happening at high levels even if it's responsible for fundamentally changing how society works in ways that small corruption never could. Laws that weaken the educational system, or employee's rights, that protect corporations, etc. not only are the reason for why most small corruption exists in the first place, they also damage society beyond belief. And the kind of money and favors involved dwarf the GDP of many of those "most corrupt countries in the world". Which is why governments go out of their way to make this look like fair game, it's just lobbying. Getting the "evidence" is next to impossible because of the framework built around this. There are actual laws sending you to prison for giving $50 to a cop to get out of a fine, or the cop for taking it, written by the same people who wrote the law that allows one to pay $50M to a legislator to pass a "favorable" law. Of course there are some nuances that are always the go to for justifying how lobbying isn't bribery but they're all just as solid as saying "beautiful kids, it would be a shame if something... happened to them" is not extortion.

GuB-42 6y ago

In theory, you are liable for damage if you file frivolous DMCA takedowns. In practice, not so much. The problem is not the bots, it is that obvious false positives are not punished as they should.

acdha 6y ago

There are two separate concerns here: 1. Some sites lock accounts on reports rather than just the offending content or have YouTube-style systems which aren’t the DMCA. That’s an indirect problem especially when, as in the latter case, it’s probably a private deal where YouTube avoided lawsuits by agreeing to spare the major holding companies the expense of filing DMCA complaints. 2. The DMCA has penalties for false claims but they’re almost never enforced. This is the best area for reform: if someone’s bot incurred liability for every claim where it misidentified the material or hit a fair use case (e.g. police officers playing music loudly to make YouTube auto-block recordings of them) they would quickly start improving those systems and adding human checks.

LocalH 6y ago
It's my understanding that the DMCA's "truth" provision is limited to whether the person is authorized to represent the copyright holder, and not anything to do with the actual infringement claim itself
- acdha 6y ago
  I am not a lawyer but my understanding is that it’s more than that: see https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 - infringement covers not just that you have copyright but also that the user doesn’t have a valid right to use it, which includes fair use. Diebold lost a case where someone published internal emails and they used the DMCA to try to get them taken offline, and a judge agreed that this was fair use: https://www.eff.org/cases/online-policy-group-v-diebold https://www.eff.org/cases/online-policy-group-v-diebold
  - LocalH 6y ago
    What I'm referring to is that perjury seems to be limited to cases where the claim to represent the copyright holder is unauthorized. One can file any number of DMCA claims on otherwise false grounds (such as fair use, etc), and if the court then chooses to sue upon DMCA appeal, they can cost the user far more than they should be able to, even if the user wins, as long as the person filing the DMCA is authorized by the copyright holder to do so. I would like to see such perjury charges be expanded to situations where it is clear the copyright holder's representative has acted in bad faith regarding whether infringement even happened, or whether it was justified infringement (fair use).