6 ms·

The epidemic of fraudulent DMCA takedowns

182 points by colinprince 3y ago

ralmidani 3y ago
This epidemic will continue to spread unless the burden of proof is placed on the party filing the complaint, along with having penalties imposed for filing bogus complaints.
- LegitShady 3y ago
  the problem is the scale of the content is so big that no company is actually willing to have humans review all the claims.
  - tokai 3y ago
    That should really be their problem to solve.
  - realusername 3y ago
    If they can't even notice the abuse, does the abuse even matter? I think that's the core problem here.
    - dangrossman 3y ago
      Imagine you're Disney and you want to crack down on merchandise infringing on your IP. You type [site:etsy.com "minnie mouse"] into Google and get 3.8 million results. There's another million results for "iron man", 2.1 million for "avengers", 6.8 million for "star wars", etc. That's just the likely infringement on a single marketplace. I don't think this is a scale too small to notice. How many people would Disney have to employ to review every listing before making a claim, and continue to do so as fast as the world population can make additional unlicensed copies?
      - realusername 3y ago
        Maybe they just don't need to simply? I understand they would like as much control as possible but that's impossible with the abundance of choices and places nowadays and I firmly think that those automated blind takedowns are doing more harm than good. I don't think total control is possible in such an environment, DMCA or not.
      - devmor 3y ago
        With all due respect, that sounds like a problem for Disney. I do not see why a corporations scale of intellectual property protection should have its burden foisted upon everyone else. It makes to sense to provide a modicum of protection that can apply to individuals, but just as individuals can't require a policeman to stand guard outside their home 24/7, corporations must hire security guards if they want extra protection from the undesirable elements their commercial activity attracts.
  - j-bos 3y ago
    Seems like a problem for automation to solve, automation takes existing jobs, workers transition servicing in niche's that are currently lacking, like all forms of moderation and review. Oversimplified of course.
  - Larrikin 3y ago
    Imagine if large real estate developers could say that they are constructing too many buildings to make sure they are all up to code. Society has no obligation to make sure companies can scale as fast as possible.
- paulgb 3y ago
  That would be the ideal, but a secondary deterrent is the Streisand effect. If I had the time, I would love to aggregate listings from Lumen that use sites like uniontimes and thetribunepost to instigate false takedowns, and list them all so that they would come up in a Google search showing that someone had (fraudulently) tried to have the stories removed. I’m not sure how much of a deterrent it would be, but I imagine that sort of thing would at least prevent people from recommending the fake-takedown approach to others.
- superkuh 3y ago
  There's a better solution. Just make it so claimants have to be a real person. There should be "know your customer" for claimaints for laws requiring companies to follow up on legal claims like DMCA reports. KYC is obviously socially accepted and easily implemented since it's being required for so many other things. The whole basis of an adversarial legal system is that you need two legal persons on either side. This is a context in which you have to wonder why it isn't already like that. Once false reports from fake companies and people are infeasible there will be much less of a problem. All without changing the penalties.
vladmdgolam 3y ago
Similar thing happens in the music world, where Kanye West recently interpolated a Donna Summer’s track for the Vultures 1 album, and Apple Music & Spotify immediately deleted the track, even before any official process. The lyrics and melody were different, so it’s not even an interpolation in a way, and all that did not matter.
supriyo-biswas 3y ago
From a technical perspective, Google could compare whois domain registration details and snapshots at the Internet Archive with the allegedly infringing URL. There could be mandatory identity verification for filing DMCA complaints as well, but I'm not sure whether that would gel well with the current regime which penalizes not acting on infringement notices. Further, as someone whose application assets were copied without my permission by small time firms and had to go the DMCA route, I'd probably want to avoid giving out my ID to every hosting company under the sun.
- SllX 3y ago
  I agree with you in sentiment but this part: > From a technical perspective, Google could compare whois domain registration details and snapshots at the Internet Archive with the allegedly infringing URL. No to Google abusing the Internet Archive’s servers. If they want to host a mirror of their own and hit that, fine, but you know what they could be using instead? Their very own Google Cache.
  - thayne 3y ago
    > Their very own Google Cache. You mean the thing they recently announced they were shutting down, and suggest you use the Internet archive instead? [1]: https://arstechnica.com/gadgets/2024/02/google-search-kills-off-cached-webpages/ https://arstechnica.com/gadgets/2024/02/google-search-kills-... [2]: https://searchengineland.com/google-search-officially-retires-cache-link-437122 https://searchengineland.com/google-search-officially-retire... [3]: https://news.ycombinator.com/item?id=39234246 https://news.ycombinator.com/item?id=39234246
    - SllX 3y ago
      The very same. My response here applies as well: https://news.ycombinator.com/item?id=39413967 https://news.ycombinator.com/item?id=39413967
  - knodi123 3y ago
    > Their very own Google Cache They permanently disabled that recently.
kevingadd 3y ago
"We have robust tools and processes in place to fight fraudulent takedown attempts, and we use a combination of automated and human review to detect signals of abuse" Google lying to the public like this should be considered false advertising. They don't even require takedowns to be fully filled out.
- olliej 3y ago
  No, google is doing what it can within the extremely tight confines of what the DMCA allows. The DMCA essentially prohibits companies from applying any judgement as to the validity of the complaint, so all google can do is try to identify fraudulent filers, but if a new entity makes a complaint it doesn't seem like there's a huge amount of signal available at that point to indicate whether that entity is legit. The issue with the DMCA is it says something like "if you try to decide whether or not claims are valid, you also accept liability for infringement", which means there's near unbounded cost if you try to reject claims because the claims themselves are invalid, e.g. the DMCA "allows" a corporation to do that filtering but only in a way that no one would ever do. Imagine you were running a forum, and you got a DMCA takedown notice for something someone posted. Let's say it's clearly obvious that the claim is invalid, and you reply with "hell no, that's clearly a BS claim". Later on someone posts something that is obviously copyright infringing. As I understood what people were complaining about (some 20 years ago sorry), because you rejected the earlier takedown you may now be liable for that infringing post. Hence, the only safe option available is to always start the two week takedown. For many of these fraudulent claims that's the goal - they just want to censor the content. It doesn't matter if they ignore any future contact attempts, it doesn't matter if the person who got hit provides you evidence the claim is false, the DMCA basically requires that you keep the content down for two weeks to allow the original claimant to respond (which in these fraudulent cases they won't). Google obviously does stop bring stuff back early now if it gets major publicity, but my guess is they have more lawyers than most companies can afford, and that they believe that if they were to go to court they could say they did their best to comply with the DMCA but the pressure (often incl. politicians) made them feel it was in the public interest or something to revert the takedown or whatever, and that that argument would hold up in court. The problem is not Google here, the problem is a trivially abusable law that has no penalties for fraud.
Nextgrid 3y ago
This is just a symptom of the wider problem out there that the world is wildly unprepared to deal with cases of industrial-scale fraud. The DMCA takedown process assumes that nobody would make false declarations under the assumption that there would be consequences to doing so. For a while, this worked - the consequences (or the mere possibility of them) - kept everyone more or less honest. The problem nowadays is that bad actors are starting to see through the illusion. This is not limited to DMCA takedowns either - corporation-against-consumer fraud has also been normalized.
- olliej 3y ago
  There was never a penalty for incorrect DMCA claims. Unless you mean perjury? Perjury does not have any meaningful penalty because you can always claim "I honestly believed this claim was correct, but now I see how I was wrong" - e.g the numerous takedowns against material that is clearly fair use. Then even the blatantly incorrect claims have to be responded to with an immediate takedown because the DMCA not only doesn't allow the processing organization to confirm the claimant owns the IP, or represents the firm that owns the IP, it doesn't even provide the option to confirm the claimant is a real legal entity that exists. If the claimant doesn't even legally exist, then even if they are committing perjury there's no one to bring the claim against. It's also again kind of moot, because making these complaints realistically requires getting a lawyer, but the DMCA again does not provide any mechanism to recover legal fees arising from incorrect or fraudulent claims. When the DMCA was passed everyone with half a brain was saying that it was clearly trivial to abuse.
  - masklinn 3y ago
    The DMCA also does not put the accuracy of the claim itself under penalty of perjury, so false claims have no penalty whatsoever under the DMCA, not even perjury, only performing a takedown while not authorised by the rightsholder.
  - miki123211 3y ago
    This also assumes that the claimant is even under US jurisdiction. Let's say you are affiliated with the <insert dictatorship here> government and want to censor memes critical of <insert dictator>. You can pretend you're John Appleseed, living at 123 Church Street in Maine, and that the memes are copies of your own work, posted without attribution. If anybody dares to file a counterclaim, they have to provide all their personal details. If they post <insert dictator here> memes, it's likely they have some connection to your country, either by straight up living there or having family members. You can exploit those connections and do whatever dictators like to do with people who like to post memes critical of them. If you find an actual American with no connection to your country who isn't afraid to disclose their personal details to you, they can sue. They can probably even win, possibly in a default judgment, as you're not from the US and therefore unlikely to show up in an American court. That, however, doesn't matter much, as there's no way the US can do anything to you. Even if they figure out who you are, they can't forcibly take money out of a bank account in <insert dictatorship here>.
kelseyfrog 3y ago
What's an acceptable rate of false positives and false negatives?
- pixl97 3y ago
  In a typical civil court cases, what is the ratio of wins (including settlements) to losses by the plaintiff?
1letterunixname 3y ago
No shit. DMCA is an authoritarian disaster and a gift to rent-seeking corporations and to criminals. Remember the little-to-no evidence legitimized extortion prosecution campaigns of terror.
sonar_un 3y ago
Classical musicians fight a similar battle every day with Sony, UMG, and Warner filing copyright on every single piece of classical music posted online.
- a_wild_dandan 3y ago
  Could the artists band together, collect evidence, and create a class action lawsuit? Or is the juice not worth the squeeze?
  - sonar_un 3y ago
    Classical musicians are too poor in general to fight this.
    - a_wild_dandan 3y ago
      That's presumably true for most class action suit plaintiffs, no?
asdadsdad 3y ago
https://news.ycombinator.com/item?id=37034931 https://news.ycombinator.com/item?id=37034931
bluish29 3y ago
The problem is with the economy of the DMCA take-down process. It is almost free to file on a scale, very high cost for content host to review on a scale and for alleged infringer it you will need a DMCA counter which no incentive to accept because it is a risk. Then the only option is to sue which mean high cost against sometimes a Cooperation with army of lawyers which is not worth it even if you are right. There is fundamental imbalance in the process.
- ronsor 3y ago
  Courts require filing fees. Why can't websites require them for DMCA?
_Algernon_ 3y ago
The solution here is to abolish copyright. It is a law intended for publishers not individuals, which results in this kind of abusive exploitation when applied to individuals who have little means to defend themselves. No, really. We live in a post-scarcity world when it comes to information, but artificially keep pretending it is scarce. Of course that will cause problems. Keeping copyright in a post-scarcity world is like forcing every individual to jump through financial regulation hoops intended for corporations each time they buy their morning coffee.
- chrisjj 3y ago
  Publisher individuals are a thing.
  - _Algernon_ 3y ago
    They weren't when copyright was created which is the point. Hence the metaphor for financial regulation and coffee.
- olliej 3y ago
  "The solution here is to abolish copyright" If you abolish copyright, then open source licenses cease mattering. The GPL only works because a corporation can only use GPL software if it agrees to the license, but if there is no copyright then there is nothing for the license to gate access to. Alternatively if you take the more recent argument that "the GPL is a contract not a license", then the contract also does not work because a core component of contract law is that a contract must have some kind of reasonable exchange and if there's no copyright the source software has no value (IANAL but the gist as I understand it is you can't have a contract that exchanges something for nothing). If you think software is bad now, wait until every piece of software, even the non-game ones, basically operates in the cloud so you never get direct access to any of the actual software because if you can download and run it locally you can give it to anyone. You also ensure that authors of music and books cannot make money, because they have no ownership of the work they produce. What your copyright-free world does is give a huge advantage to corporations with huge amounts of cash over pretty much everyone else.
tomxor 3y ago
> but Google rather brilliantly accepts takedown notices without checking if the person filing it exists These days, if was going to publish anything critical on my own website about any company, I'd put it on NearlyFreeSpeech. > while we aren't lawyers, neither are we idiots. We can tell the difference between people harassing our members via the DMCA and cases where our service is genuinely being misused, and we can adjust our attitude accordingly. https://www.nearlyfreespeech.net/about/faq#DMCAResponse https://www.nearlyfreespeech.net/about/faq#DMCAResponse
olliej 3y ago
I love presenting this as being google facilitating the fraud. They're literally doing what the DMCA requires, and everyone at the time it was passed said would be abused: Companies are essentially required to assume claims are legitimate or they become liable for infringement, add to that no penalties for incorrect claims, no cost for making the complaint, the requirement for the claimed material to be kept offline for two weeks iirc even if the recipient proves ownership, and this is expected. There are many reasons to not like google, but this is not googles fault. This is the DMCA operating exactly as it was designed and written. If people want to stop DMCA abuse, the solution is: * Incorrect claims have an increasing penalty for every incorrect claim involving the same companies or people. e.g. overlapping boards, overlapping lawyers, overlapping claimants, etc. Incorrect meaning it's fair use, etc * False claims - the claimant does not own the IP, the IP is out of copyright or similar - are treated as criminal perjury, and in addition to the penalties for incorrect claims the fair and reasonable copyright penalties of 10k for individuals or 100k for corporations for every blocked viewing based on average views leading up to the DMCA hit * The person making the claim must cover the full legal costs of the recipient in the even the claim is rejected (currently recipients can't afford a lawyer to respond to even the most blatant fraud) * If the recipient can provide - under the standard perjury penalties that currently don't appear to apply to claimants - demonstration that they are the owner/creator of the IP the content goes back up, and the legal representatives of the parties can be put in contact with each other (either to argue over ownership, or to arrange for the entity making the claim to pay the legal fees and penalties) * The processor handling DMCA requests can require that the entity making DMCA claims provide full contact information for the IP holder as well as the claiming entity as well (because large companies outsource IP enforcement to legal firms with no assets to recover, again why G and co should be able to require ahead of time funds to cover recipient legal expenses). The processor is permitted to ignore claims from any organization where it cannot confirm all contact and identity information, and it is permitted to charge a reasonable fee for those identity and background checks. Recall that the DMCA takedown system is a shortcut and convenience to circumvent the legal system, so a company can also just engage the legal system normally if they don't want these fees. * If a company or organization that makes repeated incorrect claims, the minimum period before a takedown increases to two weeks. The processor can require the claimant demonstrate that they have the funds to cover the recipient's legal fees in the event the claim is rejected and if any recipients of invalid claims are unable to have their legal fees and the penalties repaid in a timely manner, the processor can require an escrow to cover those fees ahead of time and not service any request without such - per claim - escrow set up. * The various restrictions on repeat claimants, etc apply to the actual holder of the IP, the legal firms representing them, and the individual legal representatives signing documents. e.g. you can't be a hansmaier type firm where the same lawyers keep re-incorporating as new legal entities to circumvent the restriction, and similarly if you are a legal representative that keeps filing incorrect or fraudulent paperwork then if you move to a new company you would poison that companies claims as well. Essentially, if you want to keep the takedown mechanism of the DMCA there have to be penalties if you abuse it, and corporations processing those claims need to be able to ignore claimants that abuse the takedown process.
indymike 3y ago
The solution to this problem is to simply require a small, say $50-$100 deposit that is paid to the host (e.g. youtube) the site/account/content owner (e.g. youtuber) if they file a counterclaim (covering up to some reasonable number of urls) and the DMCA claimant does not file a Federal lawsuit. If there is no counterclaim, then the deposit is refunded. If the claimant defends their copyright with a Federal lawsuit, the deposit is refunded. This makes takedown mills and fake take downs economically unfeasible and is reasonable for claimants in that it awards some money for dealing with fraudulent and mistaken claims.
- blacksqr 3y ago
  A simpler solution using existing infrastructure is simply to require a takedown notice to include the copyrighted work's registration information. It's not necessary to register a work with the US Copyright Office to have copyright protection, but registration is necessary to file an infringement claim in court. Registering takes time and money, and the registration database is public. Simply requiring a URL that points to the work's registration as part of the DMCA notice should take care of the problem.
  - tagyro 3y ago
    But then someone has to check if the URL matches the complaint, right? Or?
    - blacksqr 3y ago
      The content host has to do work to locate the accused infringing content and make it inaccessible regardless, checking a URL for a content match should be a minimal additional effort.
  - indymike 3y ago
    > registration is necessary to file an infringement claim in court. You can register post-infringement and sue anyway. > Simply requiring a URL that points to the work's registration as part of the DMCA notice should take care of the problem. I don't think an amateur photographer should have to pay a registration fee on every photo.
deleted 3y ago
[deleted]
gtirloni 3y ago
What's the penalty for ignoring DMCA takedowns and who enforces it? FAANG and other huge companies always do risk assessment and don't blink if it's cheaper to ignore some law if the benefits outweigh the litigation costs.. does that mean DMCA takedowns could have huge financial impact for them?
- Scion9066 3y ago
  Yes. The penalty for ignoring DMCA takedowns is losing the DMCA safe harbors that protect them from copyright infringement liability. With statutory damages of $30k per work for non-willful infringement, any company that hosts user generated content would be out of business quite quickly as they get sued by every copyright holder everywhere. https://www.copyright.gov/title17/92chap5.html https://www.copyright.gov/title17/92chap5.html
486sx33 3y ago
False declarations were not properly considered at the time dmca came into law .. The general fabric of society is slowly crumbling, a crap ton of generally dishonest things are happening at a faster and faster pace.. for example what is happening with restaurant reservations. People just make a 5 reservations and then decide in the moment which to go to or not, and don’t bother to cancel because people don’t have … honor… anymore I took my wife out for Valentines dinner. They asked if I had a reservation and I did not, they said no problem they were just hoping to clear off one of the 5 couples ahead of me on the “reservation” list. We were there almost 3 hours and no one with a reservation showed… (we sat near the front window and could hear every interaction with the hostess)… I normally wouldn’t care but I was attuned to the situation from an article I had read and wow is it ever playing out all over North America.

182 points by colinprince 3y ago

This epidemic will continue to spread unless the burden of proof is placed on the party filing the complaint, along with having penalties imposed for filing bogus complaints.

LegitShady 3y ago
the problem is the scale of the content is so big that no company is actually willing to have humans review all the claims.
- tokai 3y ago
  That should really be their problem to solve.
- realusername 3y ago
  If they can't even notice the abuse, does the abuse even matter? I think that's the core problem here.
  - dangrossman 3y ago
    Imagine you're Disney and you want to crack down on merchandise infringing on your IP. You type [site:etsy.com "minnie mouse"] into Google and get 3.8 million results. There's another million results for "iron man", 2.1 million for "avengers", 6.8 million for "star wars", etc. That's just the likely infringement on a single marketplace. I don't think this is a scale too small to notice. How many people would Disney have to employ to review every listing before making a claim, and continue to do so as fast as the world population can make additional unlicensed copies?
    - realusername 3y ago
      Maybe they just don't need to simply? I understand they would like as much control as possible but that's impossible with the abundance of choices and places nowadays and I firmly think that those automated blind takedowns are doing more harm than good. I don't think total control is possible in such an environment, DMCA or not.
    - devmor 3y ago
      With all due respect, that sounds like a problem for Disney. I do not see why a corporations scale of intellectual property protection should have its burden foisted upon everyone else. It makes to sense to provide a modicum of protection that can apply to individuals, but just as individuals can't require a policeman to stand guard outside their home 24/7, corporations must hire security guards if they want extra protection from the undesirable elements their commercial activity attracts.
- j-bos 3y ago
  Seems like a problem for automation to solve, automation takes existing jobs, workers transition servicing in niche's that are currently lacking, like all forms of moderation and review. Oversimplified of course.
- Larrikin 3y ago
  Imagine if large real estate developers could say that they are constructing too many buildings to make sure they are all up to code. Society has no obligation to make sure companies can scale as fast as possible.
paulgb 3y ago
That would be the ideal, but a secondary deterrent is the Streisand effect. If I had the time, I would love to aggregate listings from Lumen that use sites like uniontimes and thetribunepost to instigate false takedowns, and list them all so that they would come up in a Google search showing that someone had (fraudulently) tried to have the stories removed. I’m not sure how much of a deterrent it would be, but I imagine that sort of thing would at least prevent people from recommending the fake-takedown approach to others.
superkuh 3y ago
There's a better solution. Just make it so claimants have to be a real person. There should be "know your customer" for claimaints for laws requiring companies to follow up on legal claims like DMCA reports. KYC is obviously socially accepted and easily implemented since it's being required for so many other things. The whole basis of an adversarial legal system is that you need two legal persons on either side. This is a context in which you have to wonder why it isn't already like that. Once false reports from fake companies and people are infeasible there will be much less of a problem. All without changing the penalties.

vladmdgolam 3y ago

Similar thing happens in the music world, where Kanye West recently interpolated a Donna Summer’s track for the Vultures 1 album, and Apple Music & Spotify immediately deleted the track, even before any official process. The lyrics and melody were different, so it’s not even an interpolation in a way, and all that did not matter.

supriyo-biswas 3y ago

From a technical perspective, Google could compare whois domain registration details and snapshots at the Internet Archive with the allegedly infringing URL. There could be mandatory identity verification for filing DMCA complaints as well, but I'm not sure whether that would gel well with the current regime which penalizes not acting on infringement notices. Further, as someone whose application assets were copied without my permission by small time firms and had to go the DMCA route, I'd probably want to avoid giving out my ID to every hosting company under the sun.

SllX 3y ago
I agree with you in sentiment but this part: > From a technical perspective, Google could compare whois domain registration details and snapshots at the Internet Archive with the allegedly infringing URL. No to Google abusing the Internet Archive’s servers. If they want to host a mirror of their own and hit that, fine, but you know what they could be using instead? Their very own Google Cache.
- thayne 3y ago
  > Their very own Google Cache. You mean the thing they recently announced they were shutting down, and suggest you use the Internet archive instead? [1]: https://arstechnica.com/gadgets/2024/02/google-search-kills-off-cached-webpages/ https://arstechnica.com/gadgets/2024/02/google-search-kills-... [2]: https://searchengineland.com/google-search-officially-retires-cache-link-437122 https://searchengineland.com/google-search-officially-retire... [3]: https://news.ycombinator.com/item?id=39234246 https://news.ycombinator.com/item?id=39234246
  - SllX 3y ago
    The very same. My response here applies as well: https://news.ycombinator.com/item?id=39413967 https://news.ycombinator.com/item?id=39413967
- knodi123 3y ago
  > Their very own Google Cache They permanently disabled that recently.

kevingadd 3y ago

"We have robust tools and processes in place to fight fraudulent takedown attempts, and we use a combination of automated and human review to detect signals of abuse" Google lying to the public like this should be considered false advertising. They don't even require takedowns to be fully filled out.

olliej 3y ago
No, google is doing what it can within the extremely tight confines of what the DMCA allows. The DMCA essentially prohibits companies from applying any judgement as to the validity of the complaint, so all google can do is try to identify fraudulent filers, but if a new entity makes a complaint it doesn't seem like there's a huge amount of signal available at that point to indicate whether that entity is legit. The issue with the DMCA is it says something like "if you try to decide whether or not claims are valid, you also accept liability for infringement", which means there's near unbounded cost if you try to reject claims because the claims themselves are invalid, e.g. the DMCA "allows" a corporation to do that filtering but only in a way that no one would ever do. Imagine you were running a forum, and you got a DMCA takedown notice for something someone posted. Let's say it's clearly obvious that the claim is invalid, and you reply with "hell no, that's clearly a BS claim". Later on someone posts something that is obviously copyright infringing. As I understood what people were complaining about (some 20 years ago sorry), because you rejected the earlier takedown you may now be liable for that infringing post. Hence, the only safe option available is to always start the two week takedown. For many of these fraudulent claims that's the goal - they just want to censor the content. It doesn't matter if they ignore any future contact attempts, it doesn't matter if the person who got hit provides you evidence the claim is false, the DMCA basically requires that you keep the content down for two weeks to allow the original claimant to respond (which in these fraudulent cases they won't). Google obviously does stop bring stuff back early now if it gets major publicity, but my guess is they have more lawyers than most companies can afford, and that they believe that if they were to go to court they could say they did their best to comply with the DMCA but the pressure (often incl. politicians) made them feel it was in the public interest or something to revert the takedown or whatever, and that that argument would hold up in court. The problem is not Google here, the problem is a trivially abusable law that has no penalties for fraud.

Nextgrid 3y ago

This is just a symptom of the wider problem out there that the world is wildly unprepared to deal with cases of industrial-scale fraud. The DMCA takedown process assumes that nobody would make false declarations under the assumption that there would be consequences to doing so. For a while, this worked - the consequences (or the mere possibility of them) - kept everyone more or less honest. The problem nowadays is that bad actors are starting to see through the illusion. This is not limited to DMCA takedowns either - corporation-against-consumer fraud has also been normalized.

olliej 3y ago
There was never a penalty for incorrect DMCA claims. Unless you mean perjury? Perjury does not have any meaningful penalty because you can always claim "I honestly believed this claim was correct, but now I see how I was wrong" - e.g the numerous takedowns against material that is clearly fair use. Then even the blatantly incorrect claims have to be responded to with an immediate takedown because the DMCA not only doesn't allow the processing organization to confirm the claimant owns the IP, or represents the firm that owns the IP, it doesn't even provide the option to confirm the claimant is a real legal entity that exists. If the claimant doesn't even legally exist, then even if they are committing perjury there's no one to bring the claim against. It's also again kind of moot, because making these complaints realistically requires getting a lawyer, but the DMCA again does not provide any mechanism to recover legal fees arising from incorrect or fraudulent claims. When the DMCA was passed everyone with half a brain was saying that it was clearly trivial to abuse.
- masklinn 3y ago
  The DMCA also does not put the accuracy of the claim itself under penalty of perjury, so false claims have no penalty whatsoever under the DMCA, not even perjury, only performing a takedown while not authorised by the rightsholder.
- miki123211 3y ago
  This also assumes that the claimant is even under US jurisdiction. Let's say you are affiliated with the <insert dictatorship here> government and want to censor memes critical of <insert dictator>. You can pretend you're John Appleseed, living at 123 Church Street in Maine, and that the memes are copies of your own work, posted without attribution. If anybody dares to file a counterclaim, they have to provide all their personal details. If they post <insert dictator here> memes, it's likely they have some connection to your country, either by straight up living there or having family members. You can exploit those connections and do whatever dictators like to do with people who like to post memes critical of them. If you find an actual American with no connection to your country who isn't afraid to disclose their personal details to you, they can sue. They can probably even win, possibly in a default judgment, as you're not from the US and therefore unlikely to show up in an American court. That, however, doesn't matter much, as there's no way the US can do anything to you. Even if they figure out who you are, they can't forcibly take money out of a bank account in <insert dictatorship here>.

kelseyfrog 3y ago

What's an acceptable rate of false positives and false negatives?

pixl97 3y ago
In a typical civil court cases, what is the ratio of wins (including settlements) to losses by the plaintiff?

1letterunixname 3y ago

No shit. DMCA is an authoritarian disaster and a gift to rent-seeking corporations and to criminals. Remember the little-to-no evidence legitimized extortion prosecution campaigns of terror.

sonar_un 3y ago

Classical musicians fight a similar battle every day with Sony, UMG, and Warner filing copyright on every single piece of classical music posted online.

a_wild_dandan 3y ago
Could the artists band together, collect evidence, and create a class action lawsuit? Or is the juice not worth the squeeze?
- sonar_un 3y ago
  Classical musicians are too poor in general to fight this.
  - a_wild_dandan 3y ago
    That's presumably true for most class action suit plaintiffs, no?

asdadsdad 3y ago

https://news.ycombinator.com/item?id=37034931 https://news.ycombinator.com/item?id=37034931

bluish29 3y ago

The problem is with the economy of the DMCA take-down process. It is almost free to file on a scale, very high cost for content host to review on a scale and for alleged infringer it you will need a DMCA counter which no incentive to accept because it is a risk. Then the only option is to sue which mean high cost against sometimes a Cooperation with army of lawyers which is not worth it even if you are right. There is fundamental imbalance in the process.

ronsor 3y ago
Courts require filing fees. Why can't websites require them for DMCA?

_Algernon_ 3y ago

The solution here is to abolish copyright. It is a law intended for publishers not individuals, which results in this kind of abusive exploitation when applied to individuals who have little means to defend themselves. No, really. We live in a post-scarcity world when it comes to information, but artificially keep pretending it is scarce. Of course that will cause problems. Keeping copyright in a post-scarcity world is like forcing every individual to jump through financial regulation hoops intended for corporations each time they buy their morning coffee.

chrisjj 3y ago
Publisher individuals are a thing.
- _Algernon_ 3y ago
  They weren't when copyright was created which is the point. Hence the metaphor for financial regulation and coffee.
olliej 3y ago
"The solution here is to abolish copyright" If you abolish copyright, then open source licenses cease mattering. The GPL only works because a corporation can only use GPL software if it agrees to the license, but if there is no copyright then there is nothing for the license to gate access to. Alternatively if you take the more recent argument that "the GPL is a contract not a license", then the contract also does not work because a core component of contract law is that a contract must have some kind of reasonable exchange and if there's no copyright the source software has no value (IANAL but the gist as I understand it is you can't have a contract that exchanges something for nothing). If you think software is bad now, wait until every piece of software, even the non-game ones, basically operates in the cloud so you never get direct access to any of the actual software because if you can download and run it locally you can give it to anyone. You also ensure that authors of music and books cannot make money, because they have no ownership of the work they produce. What your copyright-free world does is give a huge advantage to corporations with huge amounts of cash over pretty much everyone else.

tomxor 3y ago

> but Google rather brilliantly accepts takedown notices without checking if the person filing it exists These days, if was going to publish anything critical on my own website about any company, I'd put it on NearlyFreeSpeech. > while we aren't lawyers, neither are we idiots. We can tell the difference between people harassing our members via the DMCA and cases where our service is genuinely being misused, and we can adjust our attitude accordingly. https://www.nearlyfreespeech.net/about/faq#DMCAResponse https://www.nearlyfreespeech.net/about/faq#DMCAResponse

olliej 3y ago

I love presenting this as being google facilitating the fraud. They're literally doing what the DMCA requires, and everyone at the time it was passed said would be abused: Companies are essentially required to assume claims are legitimate or they become liable for infringement, add to that no penalties for incorrect claims, no cost for making the complaint, the requirement for the claimed material to be kept offline for two weeks iirc even if the recipient proves ownership, and this is expected. There are many reasons to not like google, but this is not googles fault. This is the DMCA operating exactly as it was designed and written. If people want to stop DMCA abuse, the solution is: * Incorrect claims have an increasing penalty for every incorrect claim involving the same companies or people. e.g. overlapping boards, overlapping lawyers, overlapping claimants, etc. Incorrect meaning it's fair use, etc * False claims - the claimant does not own the IP, the IP is out of copyright or similar - are treated as criminal perjury, and in addition to the penalties for incorrect claims the fair and reasonable copyright penalties of 10k for individuals or 100k for corporations for every blocked viewing based on average views leading up to the DMCA hit * The person making the claim must cover the full legal costs of the recipient in the even the claim is rejected (currently recipients can't afford a lawyer to respond to even the most blatant fraud) * If the recipient can provide - under the standard perjury penalties that currently don't appear to apply to claimants - demonstration that they are the owner/creator of the IP the content goes back up, and the legal representatives of the parties can be put in contact with each other (either to argue over ownership, or to arrange for the entity making the claim to pay the legal fees and penalties) * The processor handling DMCA requests can require that the entity making DMCA claims provide full contact information for the IP holder as well as the claiming entity as well (because large companies outsource IP enforcement to legal firms with no assets to recover, again why G and co should be able to require ahead of time funds to cover recipient legal expenses). The processor is permitted to ignore claims from any organization where it cannot confirm all contact and identity information, and it is permitted to charge a reasonable fee for those identity and background checks. Recall that the DMCA takedown system is a shortcut and convenience to circumvent the legal system, so a company can also just engage the legal system normally if they don't want these fees. * If a company or organization that makes repeated incorrect claims, the minimum period before a takedown increases to two weeks. The processor can require the claimant demonstrate that they have the funds to cover the recipient's legal fees in the event the claim is rejected and if any recipients of invalid claims are unable to have their legal fees and the penalties repaid in a timely manner, the processor can require an escrow to cover those fees ahead of time and not service any request without such - per claim - escrow set up. * The various restrictions on repeat claimants, etc apply to the actual holder of the IP, the legal firms representing them, and the individual legal representatives signing documents. e.g. you can't be a hansmaier type firm where the same lawyers keep re-incorporating as new legal entities to circumvent the restriction, and similarly if you are a legal representative that keeps filing incorrect or fraudulent paperwork then if you move to a new company you would poison that companies claims as well. Essentially, if you want to keep the takedown mechanism of the DMCA there have to be penalties if you abuse it, and corporations processing those claims need to be able to ignore claimants that abuse the takedown process.

indymike 3y ago

The solution to this problem is to simply require a small, say $50-$100 deposit that is paid to the host (e.g. youtube) the site/account/content owner (e.g. youtuber) if they file a counterclaim (covering up to some reasonable number of urls) and the DMCA claimant does not file a Federal lawsuit. If there is no counterclaim, then the deposit is refunded. If the claimant defends their copyright with a Federal lawsuit, the deposit is refunded. This makes takedown mills and fake take downs economically unfeasible and is reasonable for claimants in that it awards some money for dealing with fraudulent and mistaken claims.

blacksqr 3y ago
A simpler solution using existing infrastructure is simply to require a takedown notice to include the copyrighted work's registration information. It's not necessary to register a work with the US Copyright Office to have copyright protection, but registration is necessary to file an infringement claim in court. Registering takes time and money, and the registration database is public. Simply requiring a URL that points to the work's registration as part of the DMCA notice should take care of the problem.
- tagyro 3y ago
  But then someone has to check if the URL matches the complaint, right? Or?
  - blacksqr 3y ago
    The content host has to do work to locate the accused infringing content and make it inaccessible regardless, checking a URL for a content match should be a minimal additional effort.
- indymike 3y ago
  > registration is necessary to file an infringement claim in court. You can register post-infringement and sue anyway. > Simply requiring a URL that points to the work's registration as part of the DMCA notice should take care of the problem. I don't think an amateur photographer should have to pay a registration fee on every photo.

deleted 3y ago

[deleted]

gtirloni 3y ago

What's the penalty for ignoring DMCA takedowns and who enforces it? FAANG and other huge companies always do risk assessment and don't blink if it's cheaper to ignore some law if the benefits outweigh the litigation costs.. does that mean DMCA takedowns could have huge financial impact for them?

Scion9066 3y ago
Yes. The penalty for ignoring DMCA takedowns is losing the DMCA safe harbors that protect them from copyright infringement liability. With statutory damages of $30k per work for non-willful infringement, any company that hosts user generated content would be out of business quite quickly as they get sued by every copyright holder everywhere. https://www.copyright.gov/title17/92chap5.html https://www.copyright.gov/title17/92chap5.html

486sx33 3y ago

False declarations were not properly considered at the time dmca came into law .. The general fabric of society is slowly crumbling, a crap ton of generally dishonest things are happening at a faster and faster pace.. for example what is happening with restaurant reservations. People just make a 5 reservations and then decide in the moment which to go to or not, and don’t bother to cancel because people don’t have … honor… anymore I took my wife out for Valentines dinner. They asked if I had a reservation and I did not, they said no problem they were just hoping to clear off one of the 5 couples ahead of me on the “reservation” list. We were there almost 3 hours and no one with a reservation showed… (we sat near the front window and could hear every interaction with the hostess)… I normally wouldn’t care but I was attuned to the situation from an article I had read and wow is it ever playing out all over North America.