8 ms·

The penalty for materially misrepresenting a DMCA claim is actual damages plus costs and attorney fees. That's automatic, written into the bill, unlike many oth

The penalty for materially misrepresenting a DMCA claim is actual damages plus costs and attorney fees. That's automatic, written into the bill, unlike many other torts/crimes where you need exceptional circumstances to get attorneys fees in addition to the damages.

ck2 14y ago
So years later you can get content restored? Are there lawyers who will take on cases for consignment only? It's a calculation that little people will not be able to take on the big people. This is why corporations have zero fear of incorrectly killing individual content on youtube, little chance of penalty and they can smother any attempt to fight them.
- dangrossman 14y ago
  Not years. It's back up ~10 business days after you file a counternotice or the service provider loses their safe harbor. The DMCA is designed so that disputed content is not taken down permanently without an actual injunction signed by a judge. YouTube is not responding to DMCA notices, it's given media companies direct access to take down content through their own system, and it can do this because it has no obligation to host your material for free in the first place, infringing or not.
  - troels 14y ago
    But surely neither is Stackexchange obliged to host any discussions online. So this content may never reappear - counterfiling or not.
    - dangrossman 14y ago
      That's not how it works. If StackExchange wants safe harbor from being sued itself, it must put the content back online if it receives a counternotice. YouTube doesn't have this problem because it's not receiving DMCA notices in the first place. One can't send a counternotice when there was never a notice to begin with. Since Google gives all the major media companies direct access to their system, they don't have to use the DMCA process to remove content from the site.
      - caf 14y ago
        Sure it is. Upon receiving the counternotice, StackExchange can just say "OK, we're no longer have the question offline because of the DMCA notice; as a separate matter we have decided that we decline to host this question". To believe otherwise would be to believe that a DMCA notice and counternotice somehow privileges the subject content above all other content on the site.
        dangrossman 14y ago
        But it does privilege that content above all other if the service provider wants the liability protection. You either treat that content specially or you are open to being sued for having hosted it before you took it down. To meet the requirements of the act, they must actually "replace the removed material and cease disabling access to it" (H.R.2281 Sec. 501(g)(2)(C)). Doing what you said would fail to meet that, as would some kind of "it was available for a split second but you didn't see it" prank. Real judges don't take kindly to trying to weasel around the intent of a law.
        Dylan16807 14y ago
        Just like in many states you can fire an employee for no reason but you can't fire them for a discriminatory reason, you are in violation if you take down the content from the notice despite the counter.
      - troels 14y ago
        OK, that makes sense (in a twisted way). But then, aren't Google and the media businesses balancing on the edge of something very nasty here? They have effectively made their own legal system alongside the real one. I'm not entirely sure how the US legal system works, but it sounds like something an EU court could strike down on.
- jrochkind1 14y ago
  > So years later you can get content restored? Nope, all you are supposed to have to do to get the content restored is submit a counter-notice. And it should be back in two weeks, not years. But you can be sued by the rightsholder for posting infringing material. The DMCA is really about protecting the ISP/host. The ISP can't be sued for hosting your infringing material -- so long as they take it down when receiving a takedown notice; and even when they put it back up after receiving the counter-notice from the original poster. But YOU (the poster) can still be sued. I am not sure how often ISPs/hosts have clearly identified counter-notice procedures, but that's the way the law is written. See for some further explanation: http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content http://www.dmlp.org/legal-guide/responding-dmca-takedown-not...
cft 14y ago
Except that 512(f) of DMCA is practically unenforceable [1], since the standard is to prove that they "knowingly materially" misrepresented: [1] http://blog.ericgoldman.org/archives/2013/04/another_512f_cl_1.htm http://blog.ericgoldman.org/archives/2013/04/another_512f_cl...
- pi18n 14y ago
  The outrageous thing is that even though this is a very clear-cut case of abuse you are probably right.
- DannyBee 14y ago
  So, it's not practically unenforceable. The case Eric is citing appears to be a case where Someone has an actual good faith but unreasonable belief that they have a cause of action. That eliminates the "knowingly" part. A lot of DMCA claims, including the one in the OP, are being filed by lawyers or companies who will have a much harder time showing they have a good faith but unreasonable belief. They are basically going to have to argue they are idiots. The second you can show bad faith, i have trouble believing (and I don't know of any cases where ..) a court would not impute knowledge. Basically, you want them to have to consider your affirmative defenses (which is what fair use is). While i don't necessarily disagree, to be fair, this would be wholly inconsistent with almost every other area of law. For example, if i file a negligence claim against you, you bear the burden of proving any affirmative defense to my claim, such as assumption of risk. I don't have to consider it at all when I file my claim, and if you don't prove your defense, i win. This is true no matter how valid your defense may be.
  - analog 14y ago
    But what are the 'actual damages' in this case, it would be hard to argue a monetary damage to Stack Exchange. So the most you could 'win' from CipherCloud for their abuse would be your legal costs. Hard to justify taking that action.
    - DannyBee 14y ago
      Yes, you would get some nominal damages, plus any actual loss you could prove (IE the money of the people who spent time processing your DMCA request, plus how much you would have earned from ads on the post) or, and if they did it repeatedly, you may get something more (Punitive damages are rare in contract law, but possible). Look, as much as I don't like it, this is a tradeoff. On one side, you have the fact that websites like this would normally be liable for everything they publish. DMCA says "we'll fix that for you", the cost being "if you want safe harbor, and someone with a good faith belief sends a takedown notice, you honor it". If StackExchange really believed the material was non-infringing, they could always ignore the DMCA takedown, and force CipherCloud to sue them. They didn't choose to take that risk. Newspapers have the same issue, FWIW: They get threatened all the time by bad actors (and not just for defamation of public figures, which the are mostly protected from). They just often choose to take the risk and force bad actors to sue them. It's not at all clear what you think the solution is. If you institute harsh penalties for filing "bad" DMCA requests, all that would happen would be large numbers of lawsuits over DMCA requests, bad or good, because it would likely be profitable. You really think torrentfreak/isohunt/et al wouldn't just start filing suits over every single DMCA request they receive? What do they have to lose? They wouldn't have to win many suits to make money off it. If you have a good solution, i'd love to hear it :) I realize how odd this sounds, and i really do hate the way content companies/et al abuse the DMCA process, but one doesn't need to look very hard at history to see what lawyers in general will do if you make it profitable (see the history of rule 11 sanctions, particularly, the period from 1983 to 1993, or you know, recent prop 65 litigation, resulting in everything in the world having "the state of California believes this may cause cancer" labels on it ).
gcb0 14y ago
This will only ever be enforced in the case of someone sending a request under a false name. Anything else is impossible to prove
- pyre 14y ago
  A lawyer sending a 'copyright' claim over a trademark dispute (for example) would have to argue that they are an idiot about the law (I would think).
  - gcb0 14y ago
    no, but someone contesting this would have to prove that the original request was ill intentioned. which is pretty much impossible to prove.
    - pyre 14y ago
      Using the same example, if it's a lawyer that sends a bogus takedown notice (at least in clear-cut cases), you could always notify the relevant bar association to look into the idea that this person might be unfit to practice law in that area (either too stupid of the law to be allowed to practice, or abusing it and needs to be stopped).

ck2 14y ago

So years later you can get content restored? Are there lawyers who will take on cases for consignment only? It's a calculation that little people will not be able to take on the big people. This is why corporations have zero fear of incorrectly killing individual content on youtube, little chance of penalty and they can smother any attempt to fight them.

dangrossman 14y ago
Not years. It's back up ~10 business days after you file a counternotice or the service provider loses their safe harbor. The DMCA is designed so that disputed content is not taken down permanently without an actual injunction signed by a judge. YouTube is not responding to DMCA notices, it's given media companies direct access to take down content through their own system, and it can do this because it has no obligation to host your material for free in the first place, infringing or not.
- troels 14y ago
  But surely neither is Stackexchange obliged to host any discussions online. So this content may never reappear - counterfiling or not.
  - dangrossman 14y ago
    That's not how it works. If StackExchange wants safe harbor from being sued itself, it must put the content back online if it receives a counternotice. YouTube doesn't have this problem because it's not receiving DMCA notices in the first place. One can't send a counternotice when there was never a notice to begin with. Since Google gives all the major media companies direct access to their system, they don't have to use the DMCA process to remove content from the site.
    - caf 14y ago
      Sure it is. Upon receiving the counternotice, StackExchange can just say "OK, we're no longer have the question offline because of the DMCA notice; as a separate matter we have decided that we decline to host this question". To believe otherwise would be to believe that a DMCA notice and counternotice somehow privileges the subject content above all other content on the site.
      - dangrossman 14y ago
        But it does privilege that content above all other if the service provider wants the liability protection. You either treat that content specially or you are open to being sued for having hosted it before you took it down. To meet the requirements of the act, they must actually "replace the removed material and cease disabling access to it" (H.R.2281 Sec. 501(g)(2)(C)). Doing what you said would fail to meet that, as would some kind of "it was available for a split second but you didn't see it" prank. Real judges don't take kindly to trying to weasel around the intent of a law.
      - Dylan16807 14y ago
        Just like in many states you can fire an employee for no reason but you can't fire them for a discriminatory reason, you are in violation if you take down the content from the notice despite the counter.
    - troels 14y ago
      OK, that makes sense (in a twisted way). But then, aren't Google and the media businesses balancing on the edge of something very nasty here? They have effectively made their own legal system alongside the real one. I'm not entirely sure how the US legal system works, but it sounds like something an EU court could strike down on.
jrochkind1 14y ago
> So years later you can get content restored? Nope, all you are supposed to have to do to get the content restored is submit a counter-notice. And it should be back in two weeks, not years. But you can be sued by the rightsholder for posting infringing material. The DMCA is really about protecting the ISP/host. The ISP can't be sued for hosting your infringing material -- so long as they take it down when receiving a takedown notice; and even when they put it back up after receiving the counter-notice from the original poster. But YOU (the poster) can still be sued. I am not sure how often ISPs/hosts have clearly identified counter-notice procedures, but that's the way the law is written. See for some further explanation: http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content http://www.dmlp.org/legal-guide/responding-dmca-takedown-not...

cft 14y ago

Except that 512(f) of DMCA is practically unenforceable [1], since the standard is to prove that they "knowingly materially" misrepresented: [1] http://blog.ericgoldman.org/archives/2013/04/another_512f_cl_1.htm http://blog.ericgoldman.org/archives/2013/04/another_512f_cl...

pi18n 14y ago
The outrageous thing is that even though this is a very clear-cut case of abuse you are probably right.
DannyBee 14y ago
So, it's not practically unenforceable. The case Eric is citing appears to be a case where Someone has an actual good faith but unreasonable belief that they have a cause of action. That eliminates the "knowingly" part. A lot of DMCA claims, including the one in the OP, are being filed by lawyers or companies who will have a much harder time showing they have a good faith but unreasonable belief. They are basically going to have to argue they are idiots. The second you can show bad faith, i have trouble believing (and I don't know of any cases where ..) a court would not impute knowledge. Basically, you want them to have to consider your affirmative defenses (which is what fair use is). While i don't necessarily disagree, to be fair, this would be wholly inconsistent with almost every other area of law. For example, if i file a negligence claim against you, you bear the burden of proving any affirmative defense to my claim, such as assumption of risk. I don't have to consider it at all when I file my claim, and if you don't prove your defense, i win. This is true no matter how valid your defense may be.
- analog 14y ago
  But what are the 'actual damages' in this case, it would be hard to argue a monetary damage to Stack Exchange. So the most you could 'win' from CipherCloud for their abuse would be your legal costs. Hard to justify taking that action.
  - DannyBee 14y ago
    Yes, you would get some nominal damages, plus any actual loss you could prove (IE the money of the people who spent time processing your DMCA request, plus how much you would have earned from ads on the post) or, and if they did it repeatedly, you may get something more (Punitive damages are rare in contract law, but possible). Look, as much as I don't like it, this is a tradeoff. On one side, you have the fact that websites like this would normally be liable for everything they publish. DMCA says "we'll fix that for you", the cost being "if you want safe harbor, and someone with a good faith belief sends a takedown notice, you honor it". If StackExchange really believed the material was non-infringing, they could always ignore the DMCA takedown, and force CipherCloud to sue them. They didn't choose to take that risk. Newspapers have the same issue, FWIW: They get threatened all the time by bad actors (and not just for defamation of public figures, which the are mostly protected from). They just often choose to take the risk and force bad actors to sue them. It's not at all clear what you think the solution is. If you institute harsh penalties for filing "bad" DMCA requests, all that would happen would be large numbers of lawsuits over DMCA requests, bad or good, because it would likely be profitable. You really think torrentfreak/isohunt/et al wouldn't just start filing suits over every single DMCA request they receive? What do they have to lose? They wouldn't have to win many suits to make money off it. If you have a good solution, i'd love to hear it :) I realize how odd this sounds, and i really do hate the way content companies/et al abuse the DMCA process, but one doesn't need to look very hard at history to see what lawyers in general will do if you make it profitable (see the history of rule 11 sanctions, particularly, the period from 1983 to 1993, or you know, recent prop 65 litigation, resulting in everything in the world having "the state of California believes this may cause cancer" labels on it ).

gcb0 14y ago

This will only ever be enforced in the case of someone sending a request under a false name. Anything else is impossible to prove

pyre 14y ago
A lawyer sending a 'copyright' claim over a trademark dispute (for example) would have to argue that they are an idiot about the law (I would think).
- gcb0 14y ago
  no, but someone contesting this would have to prove that the original request was ill intentioned. which is pretty much impossible to prove.
  - pyre 14y ago
    Using the same example, if it's a lawyer that sends a bogus takedown notice (at least in clear-cut cases), you could always notify the relevant bar association to look into the idea that this person might be unfit to practice law in that area (either too stupid of the law to be allowed to practice, or abusing it and needs to be stopped).