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Untrue. Service providers that wish to benefit from the DMCA liability safe harbor must indeed have policies in place to terminate repeat infringers, and must r

Untrue. Service providers that wish to benefit from the DMCA liability safe harbor must indeed have policies in place to terminate repeat infringers, and must reasonably implement those policies (so not just written policies they ignore). Source: 17 USC 512(i)(1)(A) https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 Of course, these policies are not required by the law to count fake infringement claims toward the evaluation of whether a user is a repeat infringer, even though many do. So Shopify could add a “was this legit?” element to their repeat infringer policy in order to mostly or entirely negate the impact of fake claims, possibly with human review before termination. That’s more work than most companies at their scale want to put into making sure their strike system is equitable.

tehwebguy 3y ago
Maybe we need a provision of labels Shopify a repeat offender and as a result disallows their automated DMCA processing? YouTube too!
account42 3y ago
Interesting. Notice that 17 USC 512(i)(1)(A) calls for termination of repeat infringers but the rest of the law is careful to talk about alleged infringers. How is a service provider supposed to determine which of the alleged infringements were actually infringements?
- jkaplowitz 3y ago
  Unstated. I imagine a range of approaches would probably be upheld by the courts. In practice, there isn’t much incentive for the big providers to doubt the takedown notices as applied to most customers. After all, the pushback against them for being too quick to terminate will generally be comparable or milder than that for them being too slow to terminate, given who has the money and influence, plus it takes more work from the provider to be protective of legal reuse than to assume all notices are legitimate. Some cases of reuse-protective approaches by service providers do exist, of course. I suspect this happens when the provider is small enough to either have a reuse-protective ideology or simply to take a personalized rather than automated approach, and also when a big provider views a customer as lucrative or influential enough that they don’t want to punish them incorrectly.
- tzs 3y ago
  > How is a service provider supposed to determine which of the alleged infringements were actually infringements? Here's an outline of what the service provider has to do when they receive a notice from a complainer about alleged infringing material posted by a user of the service, if the provider wants to take advantage of the DMCA safe harbor. 1. Do a simple check of the complaint to see if it contains the required information (contact information of the complainer, asserting that the complainer is authorized to act on behalf of the copyright owner, description of what specifically is allegedly infringing, etc). 2. If it passes the check remove the alleged infringing material. 3. If the alleged infringer tells service provider that the material is not infringing, the service provider must restore the alleged infringing material, and provide the complainer with contact information of the alleged infringer. After that if the complainer wants to force the removal of the material they have to bring an infringement lawsuit against the alleged infringer. If the complainer does so and wins then the person who was an alleged infringer becomes simply an infringer. The complainer can again ask the provider to take down the material, but this time instead of making a DMCA request they can provide a copy of the judgement from that lawsuit. That makes the provider aware that the material is actually infringing, not just allegedly infringing, and the DMCA safe harbor is not available. The provider must take down the material or the provider itself might be liable for infringement.

tehwebguy 3y ago

Maybe we need a provision of labels Shopify a repeat offender and as a result disallows their automated DMCA processing? YouTube too!

account42 3y ago

Interesting. Notice that 17 USC 512(i)(1)(A) calls for termination of repeat infringers but the rest of the law is careful to talk about alleged infringers. How is a service provider supposed to determine which of the alleged infringements were actually infringements?

jkaplowitz 3y ago
Unstated. I imagine a range of approaches would probably be upheld by the courts. In practice, there isn’t much incentive for the big providers to doubt the takedown notices as applied to most customers. After all, the pushback against them for being too quick to terminate will generally be comparable or milder than that for them being too slow to terminate, given who has the money and influence, plus it takes more work from the provider to be protective of legal reuse than to assume all notices are legitimate. Some cases of reuse-protective approaches by service providers do exist, of course. I suspect this happens when the provider is small enough to either have a reuse-protective ideology or simply to take a personalized rather than automated approach, and also when a big provider views a customer as lucrative or influential enough that they don’t want to punish them incorrectly.
tzs 3y ago
> How is a service provider supposed to determine which of the alleged infringements were actually infringements? Here's an outline of what the service provider has to do when they receive a notice from a complainer about alleged infringing material posted by a user of the service, if the provider wants to take advantage of the DMCA safe harbor. 1. Do a simple check of the complaint to see if it contains the required information (contact information of the complainer, asserting that the complainer is authorized to act on behalf of the copyright owner, description of what specifically is allegedly infringing, etc). 2. If it passes the check remove the alleged infringing material. 3. If the alleged infringer tells service provider that the material is not infringing, the service provider must restore the alleged infringing material, and provide the complainer with contact information of the alleged infringer. After that if the complainer wants to force the removal of the material they have to bring an infringement lawsuit against the alleged infringer. If the complainer does so and wins then the person who was an alleged infringer becomes simply an infringer. The complainer can again ask the provider to take down the material, but this time instead of making a DMCA request they can provide a copy of the judgement from that lawsuit. That makes the provider aware that the material is actually infringing, not just allegedly infringing, and the DMCA safe harbor is not available. The provider must take down the material or the provider itself might be liable for infringement.