5 ms·

DMCA gets a bad wrap, and it is abused -- but on the surface it seems pretty right: I promise that the content that is being hosted at location X is mine, that

by lbotos 3y ago

DMCA gets a bad wrap, and it is abused -- but on the surface it seems pretty right: I promise that the content that is being hosted at location X is mine, that I did not give Y person permission to publish it, and I'm willing to face the fine of perjury if I'm actually lying. Like, in a functioning society that seems like the right tool to start a legal dispute over the right to distribute copyrighted works?

jeroenhd 3y ago
The problem is that the "perjury if I'm actually lying" part is unenforceable. As long as you have a reason to think your licensed work is being distributed elsewhere, proving perjury is very difficult. Trash companies attacking random internet websites with the permission of copyright giants can do as they please. Nintendo lies and defrauds with these notices all the time but there's no way anyone is going to take them to court over it. It's not just the entertainment industry either. HackerRank was a notable example of an IT company that willingly abused DMCA takedowns, for example. There were a whole bunch of bogus takedowns, many of which still haven't been reverted, but when one of them made it to the HN frontpage they finally seemed to have fixed their policy. There's no doubt their competitors are abusing DMCA the same way, except that they hire more competent DMCA takedown companies. In many places, the DMCA has the right idea, but it lacks serious abuse prevention. It also places a lot of unilateral power with copyright holders, more than I'm comfortable with. The whole "reverse engineering is a crime if it's copyright protection software" racket has little to do with protecting individual copyrighted works and only serves to let large media and tech companies keep their monopolies.
- freedomben 3y ago
  Yes, exactly, the reporter is almost never held accountable for the false take down request, and because of the current state of tech the entity doing the takedown is a gigantic (usually automated) tech company that is risk averse. The huge power differential puts the reportee in an impossible situation where the "neutral" third party is completely unreachable and executes their actions often without human intervention/judgment. A better law would be one that has actual penalties for wrongful reports, possibly (when the third party acts as a gate keeper like Apple, Google, etc) holding the third party liable for a wrongful judgment might help balance the scales as well because "erring on the side of the reporter" won't be a no-brainer risk-wise.
  - dragonwriter 3y ago
    > A better law would be one that has actual penalties for wrongful reports. We have general law that provides remedies for false damaging statements and for improper attempts to interfere with existing contractual relationships. I don’t think the absence of an additional cause of action specific to DMCA takedown notices actually has much effect.
    - freedomben 3y ago
      Yes but this requires a lawsuit, which is a complete non-starter for nearly all the "victims." Even if the "victim" is themself a lawyer, it's still a ridiculous amount of work required to collect. It would only be "worth it" if the power differential is lower in the first place, which is ironically when it's less likely to be needed...
      - dragonwriter 3y ago
        > Yes but this requires a lawsuit, which is a complete non-starter for nearly all the "victims." Why is "victims" in quotes there? And even of there was a specific unique cause of action for DMCA misrepresentation, that would take a lawsuit too. How do you imagine a penalty exists without legal action? (You can create a public cause of action, too, but then the victim still has to convince the relevant public authority that the case is meritorious and a priority, which can be hit or miss.)
        freedomben 3y ago
        > Why is "victims" in quotes there? Because some people lose their minds if you use the word "victim" to refer to a person who has suffered a light crime, rather than reserving it only for people who have suffered a particularly egregious violation. > And even of there was a specific unique cause of action for DMCA misrepresentation, that would take a lawsuit too. > How do you imagine a penalty exists without legal action? (You can create a public cause of action, too, but then the victim still has to convince the relevant public authority that the case is meritorious and a priority, which can be hit or miss.)* It's not an all or nothing, and not all legal action is equally arduous. Adding penalties on top of actual damages would shift the scales significantly and add some protection for the consumer (remember for companies it's all about balancing liability). Having to prove actual damages in a civil suit as is currently is essentially impossible, but reporting would not be. The law could also be changed to make it clear that you can't DMCA a tool or script simply because it could be used to violate somebody's copyright. There could be penalties for wrongfully DMCAing something (that don't require the person to lawyer up and prove actual damages, something essentially impossible for the average person). To be clear, are you saying you like the current DMCA? That it's a good law?
nyanpasu64 3y ago
The problem is that the DMCA also criminalizes hacking devices you own, and explaining to others how to hack their devices, rather than the actual process of copyright infringement (which itself is itself harmful to society in its current maximalist state). So it can be illegal to bypass DRM even if used for fair-use purposes.
Semaphor 3y ago
Isn't the issue that you only have to have issues if you are lying about representing the copyright holder? Not about the X you are pointing to actually being the content you are talking about? Your version seems sane, but I'm not sure the law works that way.

by lbotos 3y ago

jeroenhd 3y ago

The problem is that the "perjury if I'm actually lying" part is unenforceable. As long as you have a reason to think your licensed work is being distributed elsewhere, proving perjury is very difficult. Trash companies attacking random internet websites with the permission of copyright giants can do as they please. Nintendo lies and defrauds with these notices all the time but there's no way anyone is going to take them to court over it. It's not just the entertainment industry either. HackerRank was a notable example of an IT company that willingly abused DMCA takedowns, for example. There were a whole bunch of bogus takedowns, many of which still haven't been reverted, but when one of them made it to the HN frontpage they finally seemed to have fixed their policy. There's no doubt their competitors are abusing DMCA the same way, except that they hire more competent DMCA takedown companies. In many places, the DMCA has the right idea, but it lacks serious abuse prevention. It also places a lot of unilateral power with copyright holders, more than I'm comfortable with. The whole "reverse engineering is a crime if it's copyright protection software" racket has little to do with protecting individual copyrighted works and only serves to let large media and tech companies keep their monopolies.

freedomben 3y ago
Yes, exactly, the reporter is almost never held accountable for the false take down request, and because of the current state of tech the entity doing the takedown is a gigantic (usually automated) tech company that is risk averse. The huge power differential puts the reportee in an impossible situation where the "neutral" third party is completely unreachable and executes their actions often without human intervention/judgment. A better law would be one that has actual penalties for wrongful reports, possibly (when the third party acts as a gate keeper like Apple, Google, etc) holding the third party liable for a wrongful judgment might help balance the scales as well because "erring on the side of the reporter" won't be a no-brainer risk-wise.
- dragonwriter 3y ago
  > A better law would be one that has actual penalties for wrongful reports. We have general law that provides remedies for false damaging statements and for improper attempts to interfere with existing contractual relationships. I don’t think the absence of an additional cause of action specific to DMCA takedown notices actually has much effect.
  - freedomben 3y ago
    Yes but this requires a lawsuit, which is a complete non-starter for nearly all the "victims." Even if the "victim" is themself a lawyer, it's still a ridiculous amount of work required to collect. It would only be "worth it" if the power differential is lower in the first place, which is ironically when it's less likely to be needed...
    - dragonwriter 3y ago
      > Yes but this requires a lawsuit, which is a complete non-starter for nearly all the "victims." Why is "victims" in quotes there? And even of there was a specific unique cause of action for DMCA misrepresentation, that would take a lawsuit too. How do you imagine a penalty exists without legal action? (You can create a public cause of action, too, but then the victim still has to convince the relevant public authority that the case is meritorious and a priority, which can be hit or miss.)
      - freedomben 3y ago
        > Why is "victims" in quotes there? Because some people lose their minds if you use the word "victim" to refer to a person who has suffered a light crime, rather than reserving it only for people who have suffered a particularly egregious violation. > And even of there was a specific unique cause of action for DMCA misrepresentation, that would take a lawsuit too. > How do you imagine a penalty exists without legal action? (You can create a public cause of action, too, but then the victim still has to convince the relevant public authority that the case is meritorious and a priority, which can be hit or miss.)* It's not an all or nothing, and not all legal action is equally arduous. Adding penalties on top of actual damages would shift the scales significantly and add some protection for the consumer (remember for companies it's all about balancing liability). Having to prove actual damages in a civil suit as is currently is essentially impossible, but reporting would not be. The law could also be changed to make it clear that you can't DMCA a tool or script simply because it could be used to violate somebody's copyright. There could be penalties for wrongfully DMCAing something (that don't require the person to lawyer up and prove actual damages, something essentially impossible for the average person). To be clear, are you saying you like the current DMCA? That it's a good law?

nyanpasu64 3y ago

The problem is that the DMCA also criminalizes hacking devices you own, and explaining to others how to hack their devices, rather than the actual process of copyright infringement (which itself is itself harmful to society in its current maximalist state). So it can be illegal to bypass DRM even if used for fair-use purposes.

Semaphor 3y ago

Isn't the issue that you only have to have issues if you are lying about representing the copyright holder? Not about the X you are pointing to actually being the content you are talking about? Your version seems sane, but I'm not sure the law works that way.