4 ms·

It baffles me that there are no legal repercussions for abuse of DMCA / IP / copyright instruments. People who do this without grounds should be punished/fines

It baffles me that there are no legal repercussions for abuse of DMCA / IP / copyright instruments. People who do this without grounds should be punished/fines for abusing the system proportionate to what they claim.

yeahbutiguess 4y ago
I mean, there is. It's perjury. And the target of a false claim can sue the party who made the claim for damages and attorney's fees.
- Someone1234 4y ago
  So if you're rich and have the time there may be consequences, but ultimately since anyone can file a false DMCA notice, there's really no assurance that you will ever get your own lawyer's fees back let alone damages (even if they were awarded). Perjury is a pretty terrible mechanism, frankly. The whole law was and is poorly conceived.
- cesaref 4y ago
  I'm not so sure. It's a fact that he was involved in the development of this new feature, and it's his opinion that he originated the idea. Whether he did or not is for a court to decide, but he's not committing perjury by believing this. Now if he knows he didn't originate the idea and has brought vexatious proceedings, then sure, this may be perjury, but we are some way off knowing this, and i don't think we'll be in a position to determine this either way.
  - SideQuark 4y ago
    Ideas aren't copyrightable. If they're not using his code or art or actual copyrightable materials, then there is no copyright infringement.
  - yeahbutiguess 4y ago
    He wasn't involved, from all accounts.
- thfuran 4y ago
  Strictly speaking, I think the only bit that's perjury would be falsely claiming to be the copyright holder (which probably applies in this case, though I suppose the argument could be made that they were just wrong, not lying), which still leaves plenty of room for falsely claiming that something infringes a copyright.
  - Symbiote 4y ago
    To file a DMCA complaint you must be the copyright holder, or authorized to act on their behalf.
    - thfuran 4y ago
      Yes, and it's only that assertion that is made under penalty of perjury, not the assertion that the targeted work actually infringes on that copyright.
      - yeahbutiguess 4y ago
        So, if they aren't the copyright holder (as in this case) they have committed perjury by asserting they are.
        thfuran 4y ago
        Possibly not if they thought they had a valid claim, but I really don't know how that would work out in practice.
Steltek 4y ago
There are but it requires the victim to have the time, energy, and of course, money to pursue it. It also needs to not be some "DMCA Lite" contractual mechanism like Youtube's shitty ContentID system. Only real bad faith DMCA requests need apply. Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C.A. § 512
- derefr 4y ago
  > It also needs to not be some "DMCA Lite" contractual mechanism like Youtube's shitty ContentID system. Why not? By my reading of the section you quoted, it stands independently from its parent sections; anyone who makes a legal claim of copyright infringement, or pursues action under the principle that such a claim exists, would seemingly be liable for damages if they're "knowingly materially misrepresenting" the facts of that infringement, whether or not in the context of a DMCA takedown claim. Which, I mean, obviously; that's already the law, without the DMCA having to say anything additionally about it. If someone threatens legal action against you unless you do X, and you do X, and it costs you money, and then you find out it was a lie and they had no basis for their legal action — then you can totally sue them for damages, and you'll probably win. The DMCA just provides a very explicit basis for evaluating that particular situation without referring to any other bodies of potentially-conflicting case-law, so as to turn that "probably" into a "definitely."
  - deleted 4y ago
    [deleted]
  - cratermoon 4y ago
    > you can totally sue them for damages, and you'll probably win Yeah, you can totally sue Disney or Warner Bros if they file a false infringement claim against you. You'll definitely not win unless you have hundreds of thousands of dollars to go up against their phalanxes of corporate lawyers. The DMCA doesn't take into account unequal parties.
deleted 4y ago
[deleted]
jackmott 4y ago
[dead]
mountainb 4y ago
You can file for a declaratory judgment and ask for attorney's fees under the fee-shifting provision of the copyright act. Generally, most of the quasi-DMCA programs also observe the counter-notice process, which gives the plaintiff ten business days to file a lawsuit, but then cancels the informal copyright complaint if the time period ends without that lawsuit being filed. In this case, sending a counter-notice (free), filing for a declaratory judgment and asking for an injunction to prevent additional malicious filings would probably be the most direct pathway to relief. Filing bar complaints isn't likely to work all that well, because it doesn't really map to the typical things that state bar associations really look to pursue. The vast majority of bar complaints result in nothing, and most of the ones that are deemed valid result in mandatory CLE rather than more substantive penalties.

yeahbutiguess 4y ago

I mean, there is. It's perjury. And the target of a false claim can sue the party who made the claim for damages and attorney's fees.

Someone1234 4y ago
So if you're rich and have the time there may be consequences, but ultimately since anyone can file a false DMCA notice, there's really no assurance that you will ever get your own lawyer's fees back let alone damages (even if they were awarded). Perjury is a pretty terrible mechanism, frankly. The whole law was and is poorly conceived.
cesaref 4y ago
I'm not so sure. It's a fact that he was involved in the development of this new feature, and it's his opinion that he originated the idea. Whether he did or not is for a court to decide, but he's not committing perjury by believing this. Now if he knows he didn't originate the idea and has brought vexatious proceedings, then sure, this may be perjury, but we are some way off knowing this, and i don't think we'll be in a position to determine this either way.
- SideQuark 4y ago
  Ideas aren't copyrightable. If they're not using his code or art or actual copyrightable materials, then there is no copyright infringement.
- yeahbutiguess 4y ago
  He wasn't involved, from all accounts.
thfuran 4y ago
Strictly speaking, I think the only bit that's perjury would be falsely claiming to be the copyright holder (which probably applies in this case, though I suppose the argument could be made that they were just wrong, not lying), which still leaves plenty of room for falsely claiming that something infringes a copyright.
- Symbiote 4y ago
  To file a DMCA complaint you must be the copyright holder, or authorized to act on their behalf.
  - thfuran 4y ago
    Yes, and it's only that assertion that is made under penalty of perjury, not the assertion that the targeted work actually infringes on that copyright.
    - yeahbutiguess 4y ago
      So, if they aren't the copyright holder (as in this case) they have committed perjury by asserting they are.
      - thfuran 4y ago
        Possibly not if they thought they had a valid claim, but I really don't know how that would work out in practice.

Steltek 4y ago

There are but it requires the victim to have the time, energy, and of course, money to pursue it. It also needs to not be some "DMCA Lite" contractual mechanism like Youtube's shitty ContentID system. Only real bad faith DMCA requests need apply. Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C.A. § 512

derefr 4y ago
> It also needs to not be some "DMCA Lite" contractual mechanism like Youtube's shitty ContentID system. Why not? By my reading of the section you quoted, it stands independently from its parent sections; anyone who makes a legal claim of copyright infringement, or pursues action under the principle that such a claim exists, would seemingly be liable for damages if they're "knowingly materially misrepresenting" the facts of that infringement, whether or not in the context of a DMCA takedown claim. Which, I mean, obviously; that's already the law, without the DMCA having to say anything additionally about it. If someone threatens legal action against you unless you do X, and you do X, and it costs you money, and then you find out it was a lie and they had no basis for their legal action — then you can totally sue them for damages, and you'll probably win. The DMCA just provides a very explicit basis for evaluating that particular situation without referring to any other bodies of potentially-conflicting case-law, so as to turn that "probably" into a "definitely."
- deleted 4y ago
  [deleted]
- cratermoon 4y ago
  > you can totally sue them for damages, and you'll probably win Yeah, you can totally sue Disney or Warner Bros if they file a false infringement claim against you. You'll definitely not win unless you have hundreds of thousands of dollars to go up against their phalanxes of corporate lawyers. The DMCA doesn't take into account unequal parties.

deleted 4y ago

[deleted]

jackmott 4y ago

[dead]

mountainb 4y ago

You can file for a declaratory judgment and ask for attorney's fees under the fee-shifting provision of the copyright act. Generally, most of the quasi-DMCA programs also observe the counter-notice process, which gives the plaintiff ten business days to file a lawsuit, but then cancels the informal copyright complaint if the time period ends without that lawsuit being filed. In this case, sending a counter-notice (free), filing for a declaratory judgment and asking for an injunction to prevent additional malicious filings would probably be the most direct pathway to relief. Filing bar complaints isn't likely to work all that well, because it doesn't really map to the typical things that state bar associations really look to pursue. The vast majority of bar complaints result in nothing, and most of the ones that are deemed valid result in mandatory CLE rather than more substantive penalties.