6 ms·

Hey, so a common thread here seems to be enforceability of false DMCA notices and how it's a pity there's no penalty. There are penalties. Check out 17 USC 51

by dweekly 14y ago

Hey, so a common thread here seems to be enforceability of false DMCA notices and how it's a pity there's no penalty. There are penalties. Check out 17 USC 512(f): http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512 (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. I was the plaintiff in OPG v. Diebold, which was the first US federal lawsuit to establish the enforceability: we won. You can't just issue spurious, false DMCA notices without opening yourself up to large damages, such as the ones that Diebold had to pay. http://en.wikipedia.org/wiki/OPG_v._Diebold http://en.wikipedia.org/wiki/OPG_v._Diebold

tibbon 14y ago
So this post on Ars is interesting- because it seems to involve a non-US company sending DMCA takedown notices, which triggers a US Law, but if you try to find the non-US company and sue them then going after them might be very hard (even if you win, because recovering damages might be impossible). So essentially, they can use US law against a site, but have little change of repercussion? If they have invalid WHOIS information, isn't that ground for them losing their domain? Or I could be reading this incorrectly.
heyadayo 14y ago
You better have legal fees awarded to you as part of the damages, or have pro bono representation... a $100k damages award isn't going to pay for the $1-$2mm in costs to litigate a federal suit. For all practical purposes the 512f has proven to be a pretty pointless tool for holding large corporation accountable.
- dweekly 14y ago
  RE: damages, per above "...shall be liable for any damages, including costs and attorneys’ fees..." Agreed that not enough people are actually suing companies for false 512f takedowns. Sounds like this could be an interesting business opportunity for an enterprising attorney.
  - dweekly 14y ago
    I've just set up http://DMCAInjury.com http://DMCAInjury.com to report on false DMCA takedowns and possibly get you in touch with a lawyer.
- daeken 14y ago
  > For all practical purposes the 512f has proven to be a pretty pointless tool for holding large corporation accountable. That's because it's very difficult to prove that they did it knowingly, especially in an age of automated DMCA takedowns. It has nothing to do with the pain of a suit or any of that, but that you're likely to lose.
  - CaptainZapp 14y ago
    I don't get why it should make any difference if a takedown is automated, or not. If you run an automated system that deals in any way, shape, or form with legally binding documentation and - entites, you should be liable for the consequences, period. If you're a financial institution, which runs an automated trading system you can't really argue that this trade, which just cost you a couple gazillions, is from an automated system and should thus be considered invalid. Any exchange and the regulating authorities will laugh you out of business. Why should different principals apply if you automate your legal bullying?
    - daeken 14y ago
      No no, you're missing the point. Making a mistake here is not actionable -- it's totally legal to make a mistake and file for the wrong things or thinking that you have the right to the material when you actually don't. Only if you knowingly file a false claim is it an issue. That's the fundamental flaw in the DMCA's takedown construct, IMO. Edit: To make an analogy, it's like me firing a gun in no particular direction. If I hit someone, it's at least manslaughter. But if it were like the DMCA takedown system, there would be two options: I didn't knowingly shoot at anyone in particular, so I get off with nothing, or I knowingly shot at them and was in the wrong, making it murder.
caf 14y ago
Is this really likely to be enforceable against someone in India who might well be using a false name?
- jeremyjh 14y ago
  And no assets.
- rmc 14y ago
  Unlikely,
bediger4000 14y ago
There are penalties. Sure, just like there's a 4th Amendment right to not be the target of unreasonable search and seizure, and a constitutional right (Section 9) to "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time". Oh, there's also a 5th amendment right to be indicted by a grand jury for a capital or infamous crime. But you're also almost certainly snooped on every telecomm session, and the US Government has a program for assassinating US citizens. The US government doesn't enforce laws strictly, or by what the obvious wording says, nor does it enforce laws uniformly. In practice there's a "high court" for large corporations and rich people, and a "low court" for commoners and other smaller personhoods.
- zecho 14y ago
  I get your point, but a legal opinion from the Department of Justice is not the same as a "program." Set the hyperbole aside and realize that laws are always in flux, and that the courts largely define things like "unreasonable search," etc. The statement from the parent is still true. There are penalties on the books. It takes people bringing abusers to court, though, to decide the exact nature of those penalties.
  - bediger4000 14y ago
    In the case of the near-universal snooping by the NSA and related agencies, the courts have ruled, I believe: nobody has standing. Virtually every time the US Government uses the "State Secrets" privilege, the courts just let it go. For all practical purposes, what seems to me as clear wording of the 4th Amendment gets taken to mean something else. It's not really hyperbole. There are penalties on the books, agreed. They're toothless for various factors, except maybe for the very wealthy personhoods among us.
- monochromatic 14y ago
  High court and low court? What are you talking about?
  - bediger4000 14y ago
Dylan16807 14y ago
There is a rule that can be used for penalties. In practice the penalty rate, the number of actual penalties, is somewhere around 0%.

by dweekly 14y ago

tibbon 14y ago

So this post on Ars is interesting- because it seems to involve a non-US company sending DMCA takedown notices, which triggers a US Law, but if you try to find the non-US company and sue them then going after them might be very hard (even if you win, because recovering damages might be impossible). So essentially, they can use US law against a site, but have little change of repercussion? If they have invalid WHOIS information, isn't that ground for them losing their domain? Or I could be reading this incorrectly.

heyadayo 14y ago

You better have legal fees awarded to you as part of the damages, or have pro bono representation... a $100k damages award isn't going to pay for the $1-$2mm in costs to litigate a federal suit. For all practical purposes the 512f has proven to be a pretty pointless tool for holding large corporation accountable.

dweekly 14y ago
RE: damages, per above "...shall be liable for any damages, including costs and attorneys’ fees..." Agreed that not enough people are actually suing companies for false 512f takedowns. Sounds like this could be an interesting business opportunity for an enterprising attorney.
- dweekly 14y ago
  I've just set up http://DMCAInjury.com http://DMCAInjury.com to report on false DMCA takedowns and possibly get you in touch with a lawyer.
daeken 14y ago
> For all practical purposes the 512f has proven to be a pretty pointless tool for holding large corporation accountable. That's because it's very difficult to prove that they did it knowingly, especially in an age of automated DMCA takedowns. It has nothing to do with the pain of a suit or any of that, but that you're likely to lose.
- CaptainZapp 14y ago
  I don't get why it should make any difference if a takedown is automated, or not. If you run an automated system that deals in any way, shape, or form with legally binding documentation and - entites, you should be liable for the consequences, period. If you're a financial institution, which runs an automated trading system you can't really argue that this trade, which just cost you a couple gazillions, is from an automated system and should thus be considered invalid. Any exchange and the regulating authorities will laugh you out of business. Why should different principals apply if you automate your legal bullying?
  - daeken 14y ago
    No no, you're missing the point. Making a mistake here is not actionable -- it's totally legal to make a mistake and file for the wrong things or thinking that you have the right to the material when you actually don't. Only if you knowingly file a false claim is it an issue. That's the fundamental flaw in the DMCA's takedown construct, IMO. Edit: To make an analogy, it's like me firing a gun in no particular direction. If I hit someone, it's at least manslaughter. But if it were like the DMCA takedown system, there would be two options: I didn't knowingly shoot at anyone in particular, so I get off with nothing, or I knowingly shot at them and was in the wrong, making it murder.

caf 14y ago

Is this really likely to be enforceable against someone in India who might well be using a false name?

jeremyjh 14y ago
And no assets.
rmc 14y ago
Unlikely,

bediger4000 14y ago

There are penalties. Sure, just like there's a 4th Amendment right to not be the target of unreasonable search and seizure, and a constitutional right (Section 9) to "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time". Oh, there's also a 5th amendment right to be indicted by a grand jury for a capital or infamous crime. But you're also almost certainly snooped on every telecomm session, and the US Government has a program for assassinating US citizens. The US government doesn't enforce laws strictly, or by what the obvious wording says, nor does it enforce laws uniformly. In practice there's a "high court" for large corporations and rich people, and a "low court" for commoners and other smaller personhoods.

zecho 14y ago
I get your point, but a legal opinion from the Department of Justice is not the same as a "program." Set the hyperbole aside and realize that laws are always in flux, and that the courts largely define things like "unreasonable search," etc. The statement from the parent is still true. There are penalties on the books. It takes people bringing abusers to court, though, to decide the exact nature of those penalties.
- bediger4000 14y ago
  In the case of the near-universal snooping by the NSA and related agencies, the courts have ruled, I believe: nobody has standing. Virtually every time the US Government uses the "State Secrets" privilege, the courts just let it go. For all practical purposes, what seems to me as clear wording of the 4th Amendment gets taken to mean something else. It's not really hyperbole. There are penalties on the books, agreed. They're toothless for various factors, except maybe for the very wealthy personhoods among us.
monochromatic 14y ago
High court and low court? What are you talking about?
- bediger4000 14y ago

Dylan16807 14y ago

There is a rule that can be used for penalties. In practice the penalty rate, the number of actual penalties, is somewhere around 0%.