8 ms·

How does a major corp allow this to happen. Isnt the solution as simple as: 1. Forcing a seasoning period on new accounts before they create DMCA requests 2.

How does a major corp allow this to happen. Isnt the solution as simple as: 1. Forcing a seasoning period on new accounts before they create DMCA requests 2. Ranking the # of DMCA requests by account and increasing scrutiny of top complainers Could someone in the know explain how Shopify can continue to avoid the problem despite obvious solutions?

ensignavenger 3y ago
The DMCA does not allow 1, and they risk the possibility of legal liability if they do 2. The DMCA has no concept of fraud prevention builtin, and any efforts a web operator takes to prevent fraud fall into a legal grey area that could increase the operators liability. This is either a flaw in the DMCA, or a.feature, depending on who you are.
- ProllyInfamous 3y ago
  >depending on who you are. The writers definitely intended towards that spectrum's latter. As a piece of enforceable legislation, it is heavily-flawed.
- abigail95 3y ago
  There are plenty of solutions within the law that aren't a grey area. As an example, send a DMCA/C&D to shopify.com - do they have to take down their homepage? Of course not. Did they set up a robot to take down their homepage when it receives a request? Of course not. > DMCA has no concept of fraud prevention Yes it does. The safe harbor requirements require that material removed expeditously upon proper notice. A bogus notice is not proper notice. Acting on a bogus notice is against shopify's own notice and takedown procedure. They are creating more harm for themselves by doing this.
  - ensignavenger 3y ago
    But if the recipient gets it wrong and misclassifies a proper notice as a bogus notice, they are liable under the law. There is no safe harbor for "we acted in good faith but we were wrong".
    - bluGill 3y ago
      The real problem is Shopify is not the one who should receive this notice. They should act like a post office and pass it onto their users. Shopify should only do more if the poster does not respond in a reasonable amount of time, or if a court order is obtained. (Or of course the user takes things down). Of course a user responding to leave content up needs to provide their legal contact information so this can go to court.
      - freedomben 3y ago
        But if they don't take it down as soon as they are "notified" then they lose the safe harbor protections. I find the DMCA enraging but the law is pretty clear. You incur some liability by not taking down immediately, and no lawyer or business is going to incur liability when they don't have to.
        bluGill 3y ago
        What I wrote is how the law should have been written (IMHO), not how it is. You are correct the law forces them to act as they do.
  - some_random 3y ago
    Fraud prevention is a lot more than "you don't have to respond to a bogus notice"
  - onionisafruit 3y ago
    The difference with the home page is that it isn’t subject to safe harbor like third party content assuming the home page doesn’t contain user content (I haven’t actually looked). Shopify is already civilly liable for copyright issues on their home page. Since they have no safe harbor, there is no reason to follow the safe harbor rules.
  - thomastjeffery 3y ago
    The website operator is obviously prepared to file a counter-notice in respect to their own content. What they are not prepared to defend is their users' content.
- LorenPechtel 3y ago
  Yup. DMCA needs to be taken out and shot. Immediately. Then build something reasonable to replace it.
  - thomastjeffery 3y ago
    There is nothing reasonable. Intellectual Property is, to its core, unreasonable.
    - pbhjpbhj 3y ago
      To its core? I disagree. To the implementation established through corporate lobbying of media corporation over the last century; yes, I'd very much agree. The core is, people who create useful works deserve to make a living and not simply have the financial benefit of those works go to others who are rich enough to exploit them. I'd be interested if you don't agree with that core, if you could explain why?
      - thomastjeffery 3y ago
        Every person living deserves a living. Monopoly is not the route we should be taking to achieve that. Copyright only manages to support a select few artists. It does so by making it more difficult to create art in the first place! The overwhelming majority of copyright benefit (in dollars) goes to "others who are rich enough to exploit" the system itself, not to the artists who are in need of "a living". Those absurdly wealthy groups make it more difficult and more expensive for artists to compete with them. The tool they use for anti-competitive behavior is copyright. Copyright is only useful for anti-competitive behavior, because copyright is literally defined as monopoly. --- If we did not have copyright, people would still be free to financially support artists. There would only be two major differences: 1. Artists would not be able to compel people to financially support them. 2. Giant corporations would not be able to compel artists to give them monopoly over their art. Artists would be entirely free to create new art, and to seek direct financial benefit from that art. I argue that the second effect is by far the greater of the two, particularly in respect to artists who need a living wage.
- muttled 3y ago
  > they risk the possibility of legal liability if they do 2 Have any companies been successfully sued for attempting to police DMCA fraud on their platform? Be interesting to know how courts treat good-faith efforts and if there have been instances where a company just phoned it in and got in trouble for half-measures.
  - ensignavenger 3y ago
    As far as I am aware, companies are largely very risk averse to this sort of thing and no e have yet made any effort to combat fraud. In fact, I am pretty surprised to hear about Shopify even taking this step.
circuit10 3y ago
I think they legally have to allow anyone to submit these requests and act on them immediately otherwise they could be held liable for copyright violations https://en.m.wikipedia.org/wiki/Notice_and_take_down https://en.m.wikipedia.org/wiki/Notice_and_take_down > Provided the notification complies with the requirements of Section 512, the online service provider must expeditiously remove or disable access to the allegedly infringing material, otherwise the provider loses its safe harbour and is exposed to possible liability.
- ajnin 3y ago
  >> requirements of Section 512 Which include : > Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number and email address
  - braiamp 3y ago
    To which they respond: >> Shopify says that it’s not feasible for the company to investigate the validity of all takedown notices in detail. As such, these false claims resulted in actual removals and the affected stores also received strikes on their accounts.
    - deleted 3y ago
      [deleted]
    - CobrastanJorji 3y ago
      Unlike the DMCA takedown, the "strike" is by no means required by any laws. That's just Shopify choosing to penalize takedown recipients without doing any investigating.
      - bdw5204 3y ago
        The idea of "strikes" is pretty standard in the US from the 90s era "3 strikes" crime laws (i.e. commit 3 crimes and you get life without parole; these have generally been repealed in the last 5-10 years or so) that were inspired by the rules of baseball where the batter is out after 3 unsuccessful swings or hittable pitches he didn't swing at. It isn't a good system but Youtube in particular was loaded with pirated content in the early days before Google invented automated copyright moderation so they most likely needed to do something drastic to delete pirate accounts to avoid legal trouble with the copyright lobby and everybody else just copied the idea as a "best practice".
jonhohle 3y ago
I doubt the DMCA provides a provision for seasoning. IIRC, there is cause for suing someone over misrepresentation and customers should have the ability to file counter notice before having content removed. However, companies often have policies that are more restrictive than DMCA (YouTube, for example, will remove things that the DMCA would not require).
ToucanLoucan 3y ago
> How does a major corp allow this to happen. Because if Shopify gets the take-down request and ignores it, they are now potentially liable for the infringing content remaining available after the complaint has been made. Reviewing each complaint requires billable hours for someone, and just blanket accepting every one and removing the content is easily automated and incredibly cheap. And because they're so big and handle so many websites, even if every complaint is invalid and bullshit, the stores that get nuked in the process won't hurt their bottom line as much as a potential IP lawsuit would.
strangescript 3y ago
Not running afoul with laws, regulations and other large companies is more important to them than keeping one person's business online. DMCA in general is flawed. It forces companies to be judge, jury and enforcer on something that should be a lawsuit or criminally enforced. The truth is its impossible to police so we ended up DMCA out of desperation from big business mad they might lose a few dollars.
tinus_hn 3y ago
It’s all because the penalty of perjury, which is accepted in the claim, is nothing. Nobody has ever been punished for sending a false DMCA claim. If sending fraudulent claims like this resulted in the sender going to jail this wouldn’t be much of a problem at all. But it doesn’t.
- pbhjpbhj 3y ago
  False copyright claims are a civil matter. A fine equal to a fifth of the last five years of annual income and wealth increase (eg share value accrued, house value accrued), plus restitution of all actual losses, plus payment of court fees should be sufficient. Prison is a massive cost to society, we should avoid it except where it's entirely necessary.
  - hyeonwho22 3y ago
    False DMCA claims are perjury, which is (at least in some states) a felony. The rationale is that the DMCA gives complainants the ability to restrict others' speech, and so the law wants to strongly disincentivize abuse of that power.
    - pbhjpbhj 3y ago
      Are DMCA claims under oath? In any case, I didn't express it well. What I intended was that, in my personal opinion, these matters should be treated as a civil matter in view of copyright essentially being a tort. USA Americans seem to contort the notion of speech beyond recognition. Being prevented from publishing a video someone else created, say, doesn't inhibit your right to express any opinion (aka freedom of speech). But of course, disincentivising abuses of power is always good.
      - hyeonwho22 3y ago
        > Are DMCA claims under oath? Yes. DMCA claims are made under penalty of perjury. > Being prevented from publishing a video someone else created, say, doesn't inhibit your right to express any opinion (aka freedom of speech). Indeed, the inhibition of free speech is when you are prevented from publishing a video you created, because someone else falsely claims that they created it. Hence the felony.

ensignavenger 3y ago

The DMCA does not allow 1, and they risk the possibility of legal liability if they do 2. The DMCA has no concept of fraud prevention builtin, and any efforts a web operator takes to prevent fraud fall into a legal grey area that could increase the operators liability. This is either a flaw in the DMCA, or a.feature, depending on who you are.

ProllyInfamous 3y ago
>depending on who you are. The writers definitely intended towards that spectrum's latter. As a piece of enforceable legislation, it is heavily-flawed.
abigail95 3y ago
There are plenty of solutions within the law that aren't a grey area. As an example, send a DMCA/C&D to shopify.com - do they have to take down their homepage? Of course not. Did they set up a robot to take down their homepage when it receives a request? Of course not. > DMCA has no concept of fraud prevention Yes it does. The safe harbor requirements require that material removed expeditously upon proper notice. A bogus notice is not proper notice. Acting on a bogus notice is against shopify's own notice and takedown procedure. They are creating more harm for themselves by doing this.
- ensignavenger 3y ago
  But if the recipient gets it wrong and misclassifies a proper notice as a bogus notice, they are liable under the law. There is no safe harbor for "we acted in good faith but we were wrong".
  - bluGill 3y ago
    The real problem is Shopify is not the one who should receive this notice. They should act like a post office and pass it onto their users. Shopify should only do more if the poster does not respond in a reasonable amount of time, or if a court order is obtained. (Or of course the user takes things down). Of course a user responding to leave content up needs to provide their legal contact information so this can go to court.
    - freedomben 3y ago
      But if they don't take it down as soon as they are "notified" then they lose the safe harbor protections. I find the DMCA enraging but the law is pretty clear. You incur some liability by not taking down immediately, and no lawyer or business is going to incur liability when they don't have to.
      - bluGill 3y ago
        What I wrote is how the law should have been written (IMHO), not how it is. You are correct the law forces them to act as they do.
- some_random 3y ago
  Fraud prevention is a lot more than "you don't have to respond to a bogus notice"
- onionisafruit 3y ago
  The difference with the home page is that it isn’t subject to safe harbor like third party content assuming the home page doesn’t contain user content (I haven’t actually looked). Shopify is already civilly liable for copyright issues on their home page. Since they have no safe harbor, there is no reason to follow the safe harbor rules.
- thomastjeffery 3y ago
  The website operator is obviously prepared to file a counter-notice in respect to their own content. What they are not prepared to defend is their users' content.
LorenPechtel 3y ago
Yup. DMCA needs to be taken out and shot. Immediately. Then build something reasonable to replace it.
- thomastjeffery 3y ago
  There is nothing reasonable. Intellectual Property is, to its core, unreasonable.
  - pbhjpbhj 3y ago
    To its core? I disagree. To the implementation established through corporate lobbying of media corporation over the last century; yes, I'd very much agree. The core is, people who create useful works deserve to make a living and not simply have the financial benefit of those works go to others who are rich enough to exploit them. I'd be interested if you don't agree with that core, if you could explain why?
    - thomastjeffery 3y ago
      Every person living deserves a living. Monopoly is not the route we should be taking to achieve that. Copyright only manages to support a select few artists. It does so by making it more difficult to create art in the first place! The overwhelming majority of copyright benefit (in dollars) goes to "others who are rich enough to exploit" the system itself, not to the artists who are in need of "a living". Those absurdly wealthy groups make it more difficult and more expensive for artists to compete with them. The tool they use for anti-competitive behavior is copyright. Copyright is only useful for anti-competitive behavior, because copyright is literally defined as monopoly. --- If we did not have copyright, people would still be free to financially support artists. There would only be two major differences: 1. Artists would not be able to compel people to financially support them. 2. Giant corporations would not be able to compel artists to give them monopoly over their art. Artists would be entirely free to create new art, and to seek direct financial benefit from that art. I argue that the second effect is by far the greater of the two, particularly in respect to artists who need a living wage.
muttled 3y ago
> they risk the possibility of legal liability if they do 2 Have any companies been successfully sued for attempting to police DMCA fraud on their platform? Be interesting to know how courts treat good-faith efforts and if there have been instances where a company just phoned it in and got in trouble for half-measures.
- ensignavenger 3y ago
  As far as I am aware, companies are largely very risk averse to this sort of thing and no e have yet made any effort to combat fraud. In fact, I am pretty surprised to hear about Shopify even taking this step.

circuit10 3y ago

I think they legally have to allow anyone to submit these requests and act on them immediately otherwise they could be held liable for copyright violations https://en.m.wikipedia.org/wiki/Notice_and_take_down https://en.m.wikipedia.org/wiki/Notice_and_take_down > Provided the notification complies with the requirements of Section 512, the online service provider must expeditiously remove or disable access to the allegedly infringing material, otherwise the provider loses its safe harbour and is exposed to possible liability.

ajnin 3y ago
>> requirements of Section 512 Which include : > Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number and email address
- braiamp 3y ago
  To which they respond: >> Shopify says that it’s not feasible for the company to investigate the validity of all takedown notices in detail. As such, these false claims resulted in actual removals and the affected stores also received strikes on their accounts.
  - deleted 3y ago
    [deleted]
  - CobrastanJorji 3y ago
    Unlike the DMCA takedown, the "strike" is by no means required by any laws. That's just Shopify choosing to penalize takedown recipients without doing any investigating.
    - bdw5204 3y ago
      The idea of "strikes" is pretty standard in the US from the 90s era "3 strikes" crime laws (i.e. commit 3 crimes and you get life without parole; these have generally been repealed in the last 5-10 years or so) that were inspired by the rules of baseball where the batter is out after 3 unsuccessful swings or hittable pitches he didn't swing at. It isn't a good system but Youtube in particular was loaded with pirated content in the early days before Google invented automated copyright moderation so they most likely needed to do something drastic to delete pirate accounts to avoid legal trouble with the copyright lobby and everybody else just copied the idea as a "best practice".

jonhohle 3y ago

I doubt the DMCA provides a provision for seasoning. IIRC, there is cause for suing someone over misrepresentation and customers should have the ability to file counter notice before having content removed. However, companies often have policies that are more restrictive than DMCA (YouTube, for example, will remove things that the DMCA would not require).

ToucanLoucan 3y ago

> How does a major corp allow this to happen. Because if Shopify gets the take-down request and ignores it, they are now potentially liable for the infringing content remaining available after the complaint has been made. Reviewing each complaint requires billable hours for someone, and just blanket accepting every one and removing the content is easily automated and incredibly cheap. And because they're so big and handle so many websites, even if every complaint is invalid and bullshit, the stores that get nuked in the process won't hurt their bottom line as much as a potential IP lawsuit would.

strangescript 3y ago

Not running afoul with laws, regulations and other large companies is more important to them than keeping one person's business online. DMCA in general is flawed. It forces companies to be judge, jury and enforcer on something that should be a lawsuit or criminally enforced. The truth is its impossible to police so we ended up DMCA out of desperation from big business mad they might lose a few dollars.

tinus_hn 3y ago

It’s all because the penalty of perjury, which is accepted in the claim, is nothing. Nobody has ever been punished for sending a false DMCA claim. If sending fraudulent claims like this resulted in the sender going to jail this wouldn’t be much of a problem at all. But it doesn’t.

pbhjpbhj 3y ago
False copyright claims are a civil matter. A fine equal to a fifth of the last five years of annual income and wealth increase (eg share value accrued, house value accrued), plus restitution of all actual losses, plus payment of court fees should be sufficient. Prison is a massive cost to society, we should avoid it except where it's entirely necessary.
- hyeonwho22 3y ago
  False DMCA claims are perjury, which is (at least in some states) a felony. The rationale is that the DMCA gives complainants the ability to restrict others' speech, and so the law wants to strongly disincentivize abuse of that power.
  - pbhjpbhj 3y ago
    Are DMCA claims under oath? In any case, I didn't express it well. What I intended was that, in my personal opinion, these matters should be treated as a civil matter in view of copyright essentially being a tort. USA Americans seem to contort the notion of speech beyond recognition. Being prevented from publishing a video someone else created, say, doesn't inhibit your right to express any opinion (aka freedom of speech). But of course, disincentivising abuses of power is always good.
    - hyeonwho22 3y ago
      > Are DMCA claims under oath? Yes. DMCA claims are made under penalty of perjury. > Being prevented from publishing a video someone else created, say, doesn't inhibit your right to express any opinion (aka freedom of speech). Indeed, the inhibition of free speech is when you are prevented from publishing a video you created, because someone else falsely claims that they created it. Hence the felony.