15 ms·

Should Bogus Copyright Takedown Senders Be Punished?

65 points by denzil_correa 14y ago

antidoh 14y ago
Could the punishment be founded on restraint of trade? Does money or other consideration have to change hands for there to be "trade?" Or would it be the more obvious restriction of free speech. Is anyone but the government required to "do no harm" to free speech?
- deleted 14y ago
  [deleted]
- chc 14y ago
  > Or would it be the more obvious restriction of free speech. Is anyone but the government required to "do no harm" to free speech? Not in America, aside from some very specific exceptions.
ajanuary 14y ago
Off topic, but almost every link in that article seems to link the wrong part of the sentence. Is it just a linking style I'm not familiar with?
eli 14y ago
Filing a false DMCA takedown is already a crime. It's perjury.
- kps 14y ago
  Then the question can be rephrased, for the US anyway, as “Should that part of the DMCA be enforced?”
  - greyfade 14y ago
    That part of the DMCA, sadly, doesn't exist. The only penalties it gives are for the infringement and for the failure to take content down when given a valid request. There's nothing for false claims. In fact, I don't think there are any provisions for punishing fraudulent Copyright claims.
    - dllthomas 14y ago
      > In fact, I don't think there are any provisions for punishing fraudulent Copyright claims. Well, isn't making false claims for monetary gain itself fraud? I think there are provisions for punishing that...
    - chris_wot 14y ago
      Wrong. See 17 USC § 512(f): (f) Misrepresentations.— Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. [1] 1. http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512
- Natsu 14y ago
  The perjury applies to claiming to represent a copyright holder you do not. It does not apply to "misidentifying" your own copyrighted work, sadly. So if I claim to represent a copyright holder when I do not, I have committed perjury due to the DMCA. If I "misidentify" some work as my own, I have not. Yes, there's a separate requirement of good faith, but that's not at all like perjury. Personally, I think the penalty for bad faith DMCA notices should be that one loses the copyright claimed to be infringed, but the law contains no such provision. The reason I think that is because it's the only penalty that would convince the kind of people who spew out bogus DMCA notices to clean up their act.
dllthomas 14y ago
If the system is to work as designed, it's a hard question. With not-a-lot to discourage people from posting copyrighted works, there will be a lot of media on a lot of safe-harbor sites deserving of a take-down notice. Remove the first 10%, and you've not actually made it appreciably harder for those interested to find the content - you have to be at least fairly thorough. So, you are stuck filing a bunch of these notices. If you make a mistake just one time in a thousand, legitimate artists operating in good faith will be making a mistake here or there. Jailing them is not optimal. On the other hand, abuse of the system is obviously happening, and should be punished. Telling the difference, in some cases, will be difficult.
- Turing_Machine 14y ago
  Artists are rarely the ones who file these notices. Typically the filers are lawyers, who should know better., I'd be okay with disbarring them, personally.
  - dllthomas 14y ago
    That actually doesn't matter. You're advocating someone bear the risk of a ruined life over a single mistake, and given the number of takedowns needing to be filed there will be mistakes made. Someone will have to bear the cost of that risk. Of course, this is all leaving aside larger reforms - I just think that harsher liability is not an obvious band-aid; it has issues too.
    - Turing_Machine 14y ago
      "That actually doesn't matter." Why? Aren't lawyers supposed to be professionals who are held responsible for their mistakes? Filing false notices can ruin lives too. PEs and doctors lose their licenses and/or have to pay massive malpractice judgments for mistakes all the time. Why not lawyers?
      - dllthomas 14y ago
        Because the analysis is of what it does to the burden placed on artists (or those, really or purportedly, operating on their behalf) in the existing system. If the cost of a mistake is a ruined life, that side of things gets radically more expensive. All of my analysis here is predicated on "if we want to try to make the existing system work like it is supposed to," which I will be the first to agree is not our only option; even in that restricted scope, my conclusion was "it's tough to say..."
sosuke 14y ago
I like the idea in the comments about having a charge placed on each take down notice issued, might do the trick.
- adharmad 14y ago
  But why should a valid notice be charged? Isn't it similar to paying to report a theft[1]? [1] I know I have used the word theft loosely here.
  - sosuke 14y ago
    Very good point, and I wonder how the same amount of false theft reports would be handled by the police. They might tell the person filing the reports they have to stop crying wolf, or perhaps start ignoring them altogether.
  - drcube 14y ago
    It's not theft, though. Copyright infringement is civil, not criminal (correct me if I'm wrong). Filing a suit against someone is a more apt analogy, and nobody gets to file for free unless the lawyer thinks there's a good enough chance at a monetary award.
    - krickle 14y ago
      I think technically you are not wrong but actually depending on how angry the media corporations are you can get your assets frozen or be extradited like a criminal.
gwillen 14y ago
Yes. Duh. Now, if wishes were horses...
Zaheer 14y ago
I recently got a copyright takedown request for a site of mine from a competitor. Of course the request was bogus, but the availability of template copyright takedown emails online makes it very easy for any Joe to request a takedown. Maybe requiring more effort for people to submit takedown requests could help minimize bogus senders.
drcube 14y ago
What about Google and other companies' auto-takedown bots? Should they be penalized for getting it wrong?
- icebraining 14y ago
  On what grounds would a company be penalized for taking down parts of their own websites? Should YCombinator be penalized if they delete a post?
  - drcube 14y ago
    I was asking, not implying any position on my part. I don't think website owners should be prohibited from deleting user content as they see fit. But I do think the takedown bots are different. They are mainly used to avoid lawsuits and to appease the RIAA/MPAA; websites wouldn't choose to use them if left to themselves. I think they cause as many problems as bogus DMCA notices and should be discouraged. I don't necessarily believe the discouragement should be legal, but maybe. For example, if human oversight was required before the content was removed, that wouldn't necessarily restrict companies' ability to remove content, but it would minimize bogus takedowns by bots. Again, I'm not really staking a position here, I'm just trying to start the conversation while I figure out my own views on the subject.
    - icebraining 14y ago
      For example, if human oversight was required before the content was removed, that wouldn't necessarily restrict companies' ability to remove content, but it would minimize bogus takedowns by bots. Sure it would; it'd make spam removal impossible, for example.
  - bpatrianakos 14y ago
    They shouldn't but if you can't have a perfect system then it's best to have a system as close to perfect as possible and that is something we do not have. So ideally an entity wouldn't be punished for requesting a takedown of their own content but because of the insane volume of bogus takedown requests I think it's better to punish those who send them and if anyone accidentally sends a takedown request for themselves then them's the breaks until the system can differentiate between legit, bogus, and self takedown requests. Furthermore, I'm not sure how YC deleting a post and issuing a DMCA takedown request against content on their own site are the same thing. This isn't about deleting content at all. Whether a site deletes content isn't at issue whether it violates copyright or not. The issue is sending bogus takedown requests to others.
hsmyers 14y ago
To hell with the suggested three strikes nonsense. I would prefer the more draconian solution: 10k fine for every instance of bogus takedown. Money going to owner of the site in question.
- sukuriant 14y ago
  Well that's an interesting idea. Now, what happens if a small-time artist that doesn't follow the same distribution philosophy as many other artists these days (for example, if he followed a "I want money for my works" perspective), files what he thinks is a legitimate take down request and turns out to be wrong? 10k fine? He's small time and can't afford that. The law is not a fine scalpel, it's a blunt instrument; and people supporting law creation need to remember that. This goes on both sides.
  - icebraining 14y ago
    How can he be wrong? He can't recognize his own music? The problem are automated systems; the solution is just not to use one.
    - sukuriant 14y ago
      Using a 10 second sequence that happens to be the same across multiple songs. Not knowing the exact details of the law, and thinking that reproductions of the song are also owned by him?
      - icebraining 14y ago
        Having to listen to the full song (or, alternatively, not going after people who are just distributing ten second excerpts) and having to know the law before beating people with it don't seem unreasonable demands to me.
        sukuriant 14y ago
        Is 10 seconds of the song considered fair use by big media?
ashray 14y ago
Something to add into the discussion here are anti piracy agencies. The ones that advertise themselves as 'we can insert bad packets into torrents so that pirating your content takes longer or becomes impossible'. Many of these outfits will issue bogus takedown notices and then use that as proof to gain clients. An example, Agency A sends a request to TPB to remove the latest Red Hot Chili Peppers album. They don't represent universal but if TBP removes the torrent then they go running to Universal and score a contract to 'safeguard' their content online and make sure infringing websites get notices. The first few notices they send out are almost always bogus. Perjury, but this is now an actual business!
noonespecial 14y ago
A small amount (and I mean small as in anyone can afford it, something like $5 or $10) should be required in escrow to make the report. If the report was valid, there is no contest and the content is taken down, your money is returned. If the takedown is challenged, and turns out to be false, the money is split between the hosting service and the poster of the content you tried to have removed. People will try to game the automatic detectors to get false positives (and some $ for themselves) but for some time, this will be a feature, not a bug. They'll get real accurate, real fast, even if it means human review of every takedown.
- dllthomas 14y ago
  I like it.
- DeepDuh 14y ago
  I think that's too small. I'd rather see something like DEPOSIT = MIN(MAX($20, 0.1 * RevenueLossDuringTakedownProcess), $100) A small content provider a) is able to never make a bogus claim since he will not do it automatically and b) should be able to bet $100 on it.
  - dllthomas 14y ago
    Except, it's not going to be $100, it's going to be $2000, because the hosting provider has an incentive to report as high a RevenueLossDuringTakedownProcess as they can get away with. A lot of small artists are not going to be able to lock up $2000 at several sites.
zeruch 14y ago
In a word, "yes". A lot of the 3rd party DMCA mills (i.e.BayTSP, now part of Irdeto, or Attributor before it was bought by Mark Monitor) pretty much get strongarmed by their Big Content paymasters (as much as I find that bad, the combination of some of the others in that field, who have a total lack of scruples and will do whatever is asked as log as a buck is to be made). The result is often a Vietnam-like fixation on "how many notices did you send this week????" and other such drivel. THAT in turn drives carelessness with what gets flagged for a notice being sent.
chris_wot 14y ago
17 USC § 512(f) of OCILLA already allows for damages for misrepresentations. If everyone who got a false takedown sued then they would soon stop.

65 points by denzil_correa 14y ago

Could the punishment be founded on restraint of trade? Does money or other consideration have to change hands for there to be "trade?" Or would it be the more obvious restriction of free speech. Is anyone but the government required to "do no harm" to free speech?

deleted 14y ago
[deleted]
chc 14y ago
> Or would it be the more obvious restriction of free speech. Is anyone but the government required to "do no harm" to free speech? Not in America, aside from some very specific exceptions.

ajanuary 14y ago

Off topic, but almost every link in that article seems to link the wrong part of the sentence. Is it just a linking style I'm not familiar with?

eli 14y ago

Filing a false DMCA takedown is already a crime. It's perjury.

kps 14y ago
Then the question can be rephrased, for the US anyway, as “Should that part of the DMCA be enforced?”
- greyfade 14y ago
  That part of the DMCA, sadly, doesn't exist. The only penalties it gives are for the infringement and for the failure to take content down when given a valid request. There's nothing for false claims. In fact, I don't think there are any provisions for punishing fraudulent Copyright claims.
  - dllthomas 14y ago
    > In fact, I don't think there are any provisions for punishing fraudulent Copyright claims. Well, isn't making false claims for monetary gain itself fraud? I think there are provisions for punishing that...
  - chris_wot 14y ago
    Wrong. See 17 USC § 512(f): (f) Misrepresentations.— Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. [1] 1. http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512
Natsu 14y ago
The perjury applies to claiming to represent a copyright holder you do not. It does not apply to "misidentifying" your own copyrighted work, sadly. So if I claim to represent a copyright holder when I do not, I have committed perjury due to the DMCA. If I "misidentify" some work as my own, I have not. Yes, there's a separate requirement of good faith, but that's not at all like perjury. Personally, I think the penalty for bad faith DMCA notices should be that one loses the copyright claimed to be infringed, but the law contains no such provision. The reason I think that is because it's the only penalty that would convince the kind of people who spew out bogus DMCA notices to clean up their act.

dllthomas 14y ago

If the system is to work as designed, it's a hard question. With not-a-lot to discourage people from posting copyrighted works, there will be a lot of media on a lot of safe-harbor sites deserving of a take-down notice. Remove the first 10%, and you've not actually made it appreciably harder for those interested to find the content - you have to be at least fairly thorough. So, you are stuck filing a bunch of these notices. If you make a mistake just one time in a thousand, legitimate artists operating in good faith will be making a mistake here or there. Jailing them is not optimal. On the other hand, abuse of the system is obviously happening, and should be punished. Telling the difference, in some cases, will be difficult.

Turing_Machine 14y ago
Artists are rarely the ones who file these notices. Typically the filers are lawyers, who should know better., I'd be okay with disbarring them, personally.
- dllthomas 14y ago
  That actually doesn't matter. You're advocating someone bear the risk of a ruined life over a single mistake, and given the number of takedowns needing to be filed there will be mistakes made. Someone will have to bear the cost of that risk. Of course, this is all leaving aside larger reforms - I just think that harsher liability is not an obvious band-aid; it has issues too.
  - Turing_Machine 14y ago
    "That actually doesn't matter." Why? Aren't lawyers supposed to be professionals who are held responsible for their mistakes? Filing false notices can ruin lives too. PEs and doctors lose their licenses and/or have to pay massive malpractice judgments for mistakes all the time. Why not lawyers?
    - dllthomas 14y ago
      Because the analysis is of what it does to the burden placed on artists (or those, really or purportedly, operating on their behalf) in the existing system. If the cost of a mistake is a ruined life, that side of things gets radically more expensive. All of my analysis here is predicated on "if we want to try to make the existing system work like it is supposed to," which I will be the first to agree is not our only option; even in that restricted scope, my conclusion was "it's tough to say..."

sosuke 14y ago

I like the idea in the comments about having a charge placed on each take down notice issued, might do the trick.

adharmad 14y ago
But why should a valid notice be charged? Isn't it similar to paying to report a theft[1]? [1] I know I have used the word theft loosely here.
- sosuke 14y ago
  Very good point, and I wonder how the same amount of false theft reports would be handled by the police. They might tell the person filing the reports they have to stop crying wolf, or perhaps start ignoring them altogether.
- drcube 14y ago
  It's not theft, though. Copyright infringement is civil, not criminal (correct me if I'm wrong). Filing a suit against someone is a more apt analogy, and nobody gets to file for free unless the lawyer thinks there's a good enough chance at a monetary award.
  - krickle 14y ago
    I think technically you are not wrong but actually depending on how angry the media corporations are you can get your assets frozen or be extradited like a criminal.

gwillen 14y ago

Yes. Duh. Now, if wishes were horses...

Zaheer 14y ago

I recently got a copyright takedown request for a site of mine from a competitor. Of course the request was bogus, but the availability of template copyright takedown emails online makes it very easy for any Joe to request a takedown. Maybe requiring more effort for people to submit takedown requests could help minimize bogus senders.

drcube 14y ago

What about Google and other companies' auto-takedown bots? Should they be penalized for getting it wrong?

icebraining 14y ago
On what grounds would a company be penalized for taking down parts of their own websites? Should YCombinator be penalized if they delete a post?
- drcube 14y ago
  I was asking, not implying any position on my part. I don't think website owners should be prohibited from deleting user content as they see fit. But I do think the takedown bots are different. They are mainly used to avoid lawsuits and to appease the RIAA/MPAA; websites wouldn't choose to use them if left to themselves. I think they cause as many problems as bogus DMCA notices and should be discouraged. I don't necessarily believe the discouragement should be legal, but maybe. For example, if human oversight was required before the content was removed, that wouldn't necessarily restrict companies' ability to remove content, but it would minimize bogus takedowns by bots. Again, I'm not really staking a position here, I'm just trying to start the conversation while I figure out my own views on the subject.
  - icebraining 14y ago
    For example, if human oversight was required before the content was removed, that wouldn't necessarily restrict companies' ability to remove content, but it would minimize bogus takedowns by bots. Sure it would; it'd make spam removal impossible, for example.
- bpatrianakos 14y ago
  They shouldn't but if you can't have a perfect system then it's best to have a system as close to perfect as possible and that is something we do not have. So ideally an entity wouldn't be punished for requesting a takedown of their own content but because of the insane volume of bogus takedown requests I think it's better to punish those who send them and if anyone accidentally sends a takedown request for themselves then them's the breaks until the system can differentiate between legit, bogus, and self takedown requests. Furthermore, I'm not sure how YC deleting a post and issuing a DMCA takedown request against content on their own site are the same thing. This isn't about deleting content at all. Whether a site deletes content isn't at issue whether it violates copyright or not. The issue is sending bogus takedown requests to others.

hsmyers 14y ago

To hell with the suggested three strikes nonsense. I would prefer the more draconian solution: 10k fine for every instance of bogus takedown. Money going to owner of the site in question.

sukuriant 14y ago
Well that's an interesting idea. Now, what happens if a small-time artist that doesn't follow the same distribution philosophy as many other artists these days (for example, if he followed a "I want money for my works" perspective), files what he thinks is a legitimate take down request and turns out to be wrong? 10k fine? He's small time and can't afford that. The law is not a fine scalpel, it's a blunt instrument; and people supporting law creation need to remember that. This goes on both sides.
- icebraining 14y ago
  How can he be wrong? He can't recognize his own music? The problem are automated systems; the solution is just not to use one.
  - sukuriant 14y ago
    Using a 10 second sequence that happens to be the same across multiple songs. Not knowing the exact details of the law, and thinking that reproductions of the song are also owned by him?
    - icebraining 14y ago
      Having to listen to the full song (or, alternatively, not going after people who are just distributing ten second excerpts) and having to know the law before beating people with it don't seem unreasonable demands to me.
      - sukuriant 14y ago
        Is 10 seconds of the song considered fair use by big media?

ashray 14y ago

Something to add into the discussion here are anti piracy agencies. The ones that advertise themselves as 'we can insert bad packets into torrents so that pirating your content takes longer or becomes impossible'. Many of these outfits will issue bogus takedown notices and then use that as proof to gain clients. An example, Agency A sends a request to TPB to remove the latest Red Hot Chili Peppers album. They don't represent universal but if TBP removes the torrent then they go running to Universal and score a contract to 'safeguard' their content online and make sure infringing websites get notices. The first few notices they send out are almost always bogus. Perjury, but this is now an actual business!

noonespecial 14y ago

A small amount (and I mean small as in anyone can afford it, something like $5 or $10) should be required in escrow to make the report. If the report was valid, there is no contest and the content is taken down, your money is returned. If the takedown is challenged, and turns out to be false, the money is split between the hosting service and the poster of the content you tried to have removed. People will try to game the automatic detectors to get false positives (and some $ for themselves) but for some time, this will be a feature, not a bug. They'll get real accurate, real fast, even if it means human review of every takedown.

dllthomas 14y ago
I like it.
DeepDuh 14y ago
I think that's too small. I'd rather see something like DEPOSIT = MIN(MAX($20, 0.1 * RevenueLossDuringTakedownProcess), $100) A small content provider a) is able to never make a bogus claim since he will not do it automatically and b) should be able to bet $100 on it.
- dllthomas 14y ago
  Except, it's not going to be $100, it's going to be $2000, because the hosting provider has an incentive to report as high a RevenueLossDuringTakedownProcess as they can get away with. A lot of small artists are not going to be able to lock up $2000 at several sites.

zeruch 14y ago

In a word, "yes". A lot of the 3rd party DMCA mills (i.e.BayTSP, now part of Irdeto, or Attributor before it was bought by Mark Monitor) pretty much get strongarmed by their Big Content paymasters (as much as I find that bad, the combination of some of the others in that field, who have a total lack of scruples and will do whatever is asked as log as a buck is to be made). The result is often a Vietnam-like fixation on "how many notices did you send this week????" and other such drivel. THAT in turn drives carelessness with what gets flagged for a notice being sent.

chris_wot 14y ago

17 USC § 512(f) of OCILLA already allows for damages for misrepresentations. If everyone who got a false takedown sued then they would soon stop.