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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 woul
by 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.