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Well, the false or blanket DMCA take-down requests are a real problem. Here's the recent HN example of how idiotic these have gotten: http://news.ycombinator.c

Well, the false or blanket DMCA take-down requests are a real problem. Here's the recent HN example of how idiotic these have gotten: http://news.ycombinator.com/item?id=4867216 http://news.ycombinator.com/item?id=4867216 (Movie Studios Ask Google To Censor Their Own Films, Facebook and Wikipedia (torrentfreak.com))

tptacek 14y ago
They're a real problem, but how significant are they compared to the other peoples copyright reform advocates have? Spurious takedowns don't kill companies the way lawsuits do. I think takedowns are a cosmetic problem.
- tehwalrus 14y ago
  megaupload. He was stupid, but a friend lost a load of legitimate, original work; he'd been using it as an external hard drive and sharing mechanism for his large project files.
  - tptacek 14y ago
    The Mega prosecution was not spurious. The DoJ's discovery turned up a number of emails from Kim Schmitz and his team in which they openly admitted to compensating affiliates for uploading copyrighted material. Megaupload wasn't killed because of lax regulation over DMCA takedown regulations; it was killed because it was not, unlike Reddit or even Youtube, a bona fide clean-hands user-generated content exchange, but rather a piracy product wearing user-generated content clothing.
    - Dylan16807 14y ago
      I would venture to say that the vast majority of piracy on megaupload was done without the knowledge of the people running the site. And it's obvious that some of the affiliate payments are going to go to people breaking the law on any site, unless you run background checks on your affiliates. Megaupload may have been tuned toward being a 'piracy product' but that does not mean it was anything other than user-generated piracy.
      - tptacek 14y ago
        Again: the Mega indictment is full of transcripts of emails in which Kim and his team arrange to pay people to put pirated material on the site, and in which they repeatedly acknowledge the existence of copyrighted material on the site. One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality!
        CamperBob2 14y ago
        One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality! This is called "Doing it right." If Showtime would sell me a license to view their content, I wouldn't even be tempted to download it for free. Since they refuse to, it's going to be tough to work up any righteous dudgeon towards Schmitz and crew, especially when they go out of their way to adopt a customer-oriented approach. Copyright is a government entitlement that we spun from whole cloth. Capitalism, on the other hand, comes naturally. You can't fight Mother Nature.
        philwelch 14y ago
        You realize capitalism and IP are both based on the government enforcing a form of property rights, right? There's nothing "natural" about either.
        CamperBob2 14y ago
        Really? I can't own a means of production without government backing? That's... novel.
        philwelch 14y ago
        Property rights, in the sense that's necessary for capitalism, requires authoritative enforcement to actually work, which in requires government. Both theoretically and empirically. It's not a novel idea at all.
  - tehwalrus 14y ago
    Maybe so, but the FBI still haven't given my friend his work back.
    - tptacek 14y ago
      Your friend should be pretty pissed at Kim Schmitz for deceiving him into thinking that MegaUpload was a general-purpose file hosting site and not the criminal piracy conspiracy that it clearly, deliberately, lucratively was. You know, in addition to being pissed at the FBI.
      - ekimekim 14y ago
        I'm not denying that MegaUpload engaged in piracy, but that doesn't stop it from ALSO being a general-purpose file host. This is very tangential to copyright law, but there was no good reason morally (and, as far as I'm aware, legally) not to return customers data.
        tptacek 14y ago
        This is the human shield theory of defending a criminal enterprise, isn't it? Profit from piracy, but cover it up with innocent people's documents.
        bediger4000 14y ago
        No, it's the Betamax defense, isn't it? Substantial non-infringing uses make the technology allowable.
        res0nat0r 14y ago
        Correct, and this is why Amazon S3 probably the biggest filesharing system in existence is not being sued and being taken offline. Megaupload, not so much.
      - tehwalrus 14y ago
        (in reply to the much more nested comment) but this is the age of electronic data - it is easy to delete the content that was the subject of the DCMA and leave the rest of the site up read-only for a month while people archive (or something).
edj 14y ago
I have no idea how big of a problem false or fraudulent copyright claims are, but they are in fact already illegal under U.S. copyright law: Section 506(c) [1]: Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. Section 512(f) [2]: 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]: http://www.copyright.gov/title17/92chap5.html#506 http://www.copyright.gov/title17/92chap5.html#506 [2]: http://www.copyright.gov/title17/92chap5.html#512 http://www.copyright.gov/title17/92chap5.html#512
- emiliobumachar 14y ago
  A big part of the problem is the difficulty of proving fraudulent intent beyond a reasonable doubt.
- bathat 14y ago
  Can you point to a single instance of someone or some organization being successfully prosecuted for issuing a false or fraudulent DMCA take-down request? Yes, such requests are illegal under current law, but that law is never enforced. Part of the problem (in my, possibly uniformed, opinion) is that the legal standard is too high: you have to "knowingly" issue a false DMCA request, and that is a tough standard to prove in court. There is no penalty for shotgunning take-downs every which way and seeing what sticks (and saying "oops, my bad" for the ones that don't). Why does issuing a DMCA counter-notification not automatically trigger an investigation by the FBI? Then there is the problem that DMCA is woefully inadequate to deal with Fair Use. Fair Use is often cited inappropriately to justify unauthorized copying that does not rightfully fall under Fair Use exceptions. However. DMCA makes no such distinction, and it is up to the entity hosting the allegedly-infringing content (i.e., the one to which the DMCA notice is sent) to determine whether the content is actually infringing. Even when an unauthorized copy of a work passes each of the four parts of Fair Use test with flying colors, the DMCA takedown requester is still not in violation of the law you cited. So there is no disincentive to issuing spurious take-down requests.

tptacek 14y ago

They're a real problem, but how significant are they compared to the other peoples copyright reform advocates have? Spurious takedowns don't kill companies the way lawsuits do. I think takedowns are a cosmetic problem.

tehwalrus 14y ago
megaupload. He was stupid, but a friend lost a load of legitimate, original work; he'd been using it as an external hard drive and sharing mechanism for his large project files.
- tptacek 14y ago
  The Mega prosecution was not spurious. The DoJ's discovery turned up a number of emails from Kim Schmitz and his team in which they openly admitted to compensating affiliates for uploading copyrighted material. Megaupload wasn't killed because of lax regulation over DMCA takedown regulations; it was killed because it was not, unlike Reddit or even Youtube, a bona fide clean-hands user-generated content exchange, but rather a piracy product wearing user-generated content clothing.
  - Dylan16807 14y ago
    I would venture to say that the vast majority of piracy on megaupload was done without the knowledge of the people running the site. And it's obvious that some of the affiliate payments are going to go to people breaking the law on any site, unless you run background checks on your affiliates. Megaupload may have been tuned toward being a 'piracy product' but that does not mean it was anything other than user-generated piracy.
    - tptacek 14y ago
      Again: the Mega indictment is full of transcripts of emails in which Kim and his team arrange to pay people to put pirated material on the site, and in which they repeatedly acknowledge the existence of copyrighted material on the site. One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality!
      - CamperBob2 14y ago
        One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality! This is called "Doing it right." If Showtime would sell me a license to view their content, I wouldn't even be tempted to download it for free. Since they refuse to, it's going to be tough to work up any righteous dudgeon towards Schmitz and crew, especially when they go out of their way to adopt a customer-oriented approach. Copyright is a government entitlement that we spun from whole cloth. Capitalism, on the other hand, comes naturally. You can't fight Mother Nature.
        philwelch 14y ago
        You realize capitalism and IP are both based on the government enforcing a form of property rights, right? There's nothing "natural" about either.
        CamperBob2 14y ago
        Really? I can't own a means of production without government backing? That's... novel.
        philwelch 14y ago
        Property rights, in the sense that's necessary for capitalism, requires authoritative enforcement to actually work, which in requires government. Both theoretically and empirically. It's not a novel idea at all.
- tehwalrus 14y ago
  Maybe so, but the FBI still haven't given my friend his work back.
  - tptacek 14y ago
    Your friend should be pretty pissed at Kim Schmitz for deceiving him into thinking that MegaUpload was a general-purpose file hosting site and not the criminal piracy conspiracy that it clearly, deliberately, lucratively was. You know, in addition to being pissed at the FBI.
    - ekimekim 14y ago
      I'm not denying that MegaUpload engaged in piracy, but that doesn't stop it from ALSO being a general-purpose file host. This is very tangential to copyright law, but there was no good reason morally (and, as far as I'm aware, legally) not to return customers data.
      - tptacek 14y ago
        This is the human shield theory of defending a criminal enterprise, isn't it? Profit from piracy, but cover it up with innocent people's documents.
        bediger4000 14y ago
        No, it's the Betamax defense, isn't it? Substantial non-infringing uses make the technology allowable.
        res0nat0r 14y ago
        Correct, and this is why Amazon S3 probably the biggest filesharing system in existence is not being sued and being taken offline. Megaupload, not so much.
    - tehwalrus 14y ago
      (in reply to the much more nested comment) but this is the age of electronic data - it is easy to delete the content that was the subject of the DCMA and leave the rest of the site up read-only for a month while people archive (or something).

edj 14y ago

I have no idea how big of a problem false or fraudulent copyright claims are, but they are in fact already illegal under U.S. copyright law: Section 506(c) [1]: Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. Section 512(f) [2]: 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]: http://www.copyright.gov/title17/92chap5.html#506 http://www.copyright.gov/title17/92chap5.html#506 [2]: http://www.copyright.gov/title17/92chap5.html#512 http://www.copyright.gov/title17/92chap5.html#512

emiliobumachar 14y ago
A big part of the problem is the difficulty of proving fraudulent intent beyond a reasonable doubt.
bathat 14y ago
Can you point to a single instance of someone or some organization being successfully prosecuted for issuing a false or fraudulent DMCA take-down request? Yes, such requests are illegal under current law, but that law is never enforced. Part of the problem (in my, possibly uniformed, opinion) is that the legal standard is too high: you have to "knowingly" issue a false DMCA request, and that is a tough standard to prove in court. There is no penalty for shotgunning take-downs every which way and seeing what sticks (and saying "oops, my bad" for the ones that don't). Why does issuing a DMCA counter-notification not automatically trigger an investigation by the FBI? Then there is the problem that DMCA is woefully inadequate to deal with Fair Use. Fair Use is often cited inappropriately to justify unauthorized copying that does not rightfully fall under Fair Use exceptions. However. DMCA makes no such distinction, and it is up to the entity hosting the allegedly-infringing content (i.e., the one to which the DMCA notice is sent) to determine whether the content is actually infringing. Even when an unauthorized copy of a work passes each of the four parts of Fair Use test with flying colors, the DMCA takedown requester is still not in violation of the law you cited. So there is no disincentive to issuing spurious take-down requests.