4 ms·

(not a lawyer) I wonder if wire-fraud applies because IIRC the DMCA claimant gets the video's ad revenue. You have an aspect of obtaining money, it happens ove

(not a lawyer) I wonder if wire-fraud applies because IIRC the DMCA claimant gets the video's ad revenue. You have an aspect of obtaining money, it happens over the wire, so...maybe?

kmeisthax 4y ago
DMCA 512 says nothing about ad revenue. It's purely "take down this video if you don't want to be legally liable for it". Though the law explicitly states that takedown misrepresentation is a form of perjury; and you can specifically sue for that... nobody bothers. YouTube built its own parallel claims system that does claim revenue, though they did recently change it to hold revenue in escrow while a dispute is processed. The implicit goal of this system is to take as many claims as possible out of the DMCA 512 system and into YouTube's hands, where they can then negotiate a different monetization agreement behind the uploader's back.
- tadfisher 4y ago
  > The implicit goal of this system is to take as many claims as possible out of the DMCA 512 system and into YouTube's hands, where they can then negotiate a different monetization agreement behind the uploader's back. It's important to note that the video stays online instead of being removed as required under DMCA 512. This is of little consolation to the creator, of course, if they were looking to monetize the video.
- phpisthebest 4y ago
  512 (f) Absolute provides a method for a person to claim damages for a misrepresentation of copyright in a DMCA Take Down The fact this provision is not regularly enforced is because it would be expensive to do so, often exceeding the damages in the first place. However I wish EFF and other organizations would start pushing back against companies like this using 512 (f) and get some case law and actual damages including legal fees against these copyright abusers
  - sitkack 4y ago
    I would donate for the EFF for them to go after fraudulent DMCA claims, even if the recovered money is less than the lawyer fees. It should also support misconduct filings with the Bar for the attorneys that filed the requests.
  - kmeisthax 4y ago
    512(f) is difficult to prove. It's not just "they got it wrong", it's "they got it wrong and they knew they were wrong". Copyright owners are not liable for actual mistakes. This actually can be flipped on YouTubers' heads, too. If you counter-notify something that you know is infringing, you can be sued for 512(f) misrepresentation. So, say if you use a song in your video you don't own, you get DMCA'd, and you counternotify to get your video back up; you can now be countersued. But even if you do have a genuine 512(f) case, you have another problem: it is not worth your while in order to sue. For regular copyright cases, you have a thing called statutory damages, which can go up to $150,000 per infringement if the infringer was "willful" (i.e. they basically said 'fuck you'). This is in contrast to "actual damages", which is where you prove to a judge that you lost $X or that the infringer gained $Y. It's extremely difficult to prove[0] actual damages, which is why we have statutory damages. Because without the guarantee of a large damage award, even an open-and-shut case against a wealthy target becomes uneconomic to prosecute. In 512(f) claims, you only get actual damages plus fee shifting[1]. At least you can hope to recoup costs... except that that's not how fee shifting works. You don't just send the defendant your attorney's bill. The judge goes through that bill, picks out the "lodestar amount" to shift to the defendant, and you pay the rest. Oh, and all of that is assuming that both you and your defendant are financially solvent, properly capitalized entities that can pay things. You can't sue a homeless man[2]. [0] You know the whole "lost sale argument", and how we love to poke holes in it? Yeah... [1] Which, BTW, is also so un-American a concept that lawyers literally call it the French Rule. Or the British Rule. Either way, in most other countries the loser pays the winner's attorney's fees. In the US you only get fee shifting in copyright cases. [2] Which, if you believe James Gosling, is the reason why he didn't completely kill GNU Emacs. Also, you totally can sue a homeless man. It's just that you can't afford to.
dragonwriter 4y ago
> I wonder if wire-fraud applies because IIRC the DMCA claimant gets the video's ad revenue Noting for purpose of precision that the ad revenue instead of takedown for copyright claimants thing is a Youtube policy unrelated to the DMCA rules, yes, the fact that the false claimant gets paid when Youtube accepts the claim, and is aware of this, makes it quite possible for such a claim to be a “scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises” within the scope of the prohibition of the federal wire fraud statute, 18 USC § 1343, the way a DMCA claim to a provider not offering such compensation to the claimant would not be. For an organization beyond a single entity doing this as a pattern, this also potentially has civil and criminal RICO implications, as wire fraud is a RICO predicate offense. (Not a lawyer, not your lawyer, and if I was either of those things I wouldn’t be giving you legal advice via public comments on HN.)
- misnome 4y ago
  It’s not RICO.

(not a lawyer) I wonder if wire-fraud applies because IIRC the DMCA claimant gets the video's ad revenue. You have an aspect of obtaining money, it happens over the wire, so...maybe?

kmeisthax 4y ago

DMCA 512 says nothing about ad revenue. It's purely "take down this video if you don't want to be legally liable for it". Though the law explicitly states that takedown misrepresentation is a form of perjury; and you can specifically sue for that... nobody bothers. YouTube built its own parallel claims system that does claim revenue, though they did recently change it to hold revenue in escrow while a dispute is processed. The implicit goal of this system is to take as many claims as possible out of the DMCA 512 system and into YouTube's hands, where they can then negotiate a different monetization agreement behind the uploader's back.

tadfisher 4y ago
> The implicit goal of this system is to take as many claims as possible out of the DMCA 512 system and into YouTube's hands, where they can then negotiate a different monetization agreement behind the uploader's back. It's important to note that the video stays online instead of being removed as required under DMCA 512. This is of little consolation to the creator, of course, if they were looking to monetize the video.
phpisthebest 4y ago
512 (f) Absolute provides a method for a person to claim damages for a misrepresentation of copyright in a DMCA Take Down The fact this provision is not regularly enforced is because it would be expensive to do so, often exceeding the damages in the first place. However I wish EFF and other organizations would start pushing back against companies like this using 512 (f) and get some case law and actual damages including legal fees against these copyright abusers
- sitkack 4y ago
  I would donate for the EFF for them to go after fraudulent DMCA claims, even if the recovered money is less than the lawyer fees. It should also support misconduct filings with the Bar for the attorneys that filed the requests.
- kmeisthax 4y ago
  512(f) is difficult to prove. It's not just "they got it wrong", it's "they got it wrong and they knew they were wrong". Copyright owners are not liable for actual mistakes. This actually can be flipped on YouTubers' heads, too. If you counter-notify something that you know is infringing, you can be sued for 512(f) misrepresentation. So, say if you use a song in your video you don't own, you get DMCA'd, and you counternotify to get your video back up; you can now be countersued. But even if you do have a genuine 512(f) case, you have another problem: it is not worth your while in order to sue. For regular copyright cases, you have a thing called statutory damages, which can go up to $150,000 per infringement if the infringer was "willful" (i.e. they basically said 'fuck you'). This is in contrast to "actual damages", which is where you prove to a judge that you lost $X or that the infringer gained $Y. It's extremely difficult to prove[0] actual damages, which is why we have statutory damages. Because without the guarantee of a large damage award, even an open-and-shut case against a wealthy target becomes uneconomic to prosecute. In 512(f) claims, you only get actual damages plus fee shifting[1]. At least you can hope to recoup costs... except that that's not how fee shifting works. You don't just send the defendant your attorney's bill. The judge goes through that bill, picks out the "lodestar amount" to shift to the defendant, and you pay the rest. Oh, and all of that is assuming that both you and your defendant are financially solvent, properly capitalized entities that can pay things. You can't sue a homeless man[2]. [0] You know the whole "lost sale argument", and how we love to poke holes in it? Yeah... [1] Which, BTW, is also so un-American a concept that lawyers literally call it the French Rule. Or the British Rule. Either way, in most other countries the loser pays the winner's attorney's fees. In the US you only get fee shifting in copyright cases. [2] Which, if you believe James Gosling, is the reason why he didn't completely kill GNU Emacs. Also, you totally can sue a homeless man. It's just that you can't afford to.

dragonwriter 4y ago

> I wonder if wire-fraud applies because IIRC the DMCA claimant gets the video's ad revenue Noting for purpose of precision that the ad revenue instead of takedown for copyright claimants thing is a Youtube policy unrelated to the DMCA rules, yes, the fact that the false claimant gets paid when Youtube accepts the claim, and is aware of this, makes it quite possible for such a claim to be a “scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises” within the scope of the prohibition of the federal wire fraud statute, 18 USC § 1343, the way a DMCA claim to a provider not offering such compensation to the claimant would not be. For an organization beyond a single entity doing this as a pattern, this also potentially has civil and criminal RICO implications, as wire fraud is a RICO predicate offense. (Not a lawyer, not your lawyer, and if I was either of those things I wouldn’t be giving you legal advice via public comments on HN.)

misnome 4y ago
It’s not RICO.