Comment by pyre | Hacker News Reader

Comment by pyre | Hacker News Reader

Parent Full thread

The real issue here is that there are not real penalties for abuse of the DMCA. DMCA takedown notices have been filed in cases of trademark dispute (for example), even though the DMCA only covers copyright. What really needs to happen is that we need to send plaintiffs and lawyers to jail for abuse of the DMCA. Then people will only file notices when there is a real reason, not just because some automated process noticed the a YouTube video has the same name as a Britney Spears song, even though the video has nothing to do with Britney Spears or her music.

[edit] There was a real case where someone's YouTube video was sent a takedown notice because the name of the video was the same as the name of a copyrighted work, even though the content was completely original and had nothing to do with the copyrighted work.

[edit2] Part of the issue here is that it's hard to get rulings against large corporations over crap like this unless I can state to the court that I lost $X-million in revenue due to the content being taken down. If I'm a home user that put a homevideo online just to share it with the world, I apparently have less rights that the corporation that sends out 300 DMCA notices/day.

Absolutely right. A two-week takedown isn't that bad if whoever files the DMCA notice risks getting creamed if the notice is improper. Like if you file a DMCA notice on something that's a clear-cut case of non-infringement and it's thrown out, you have to pay the guy a very hefty fine.

Or if you file a claim that says someone is infringing 'copyright' by using a trademarked name they doubly need to be slapped down since the lawyers themselves should know better than to confuse trademark and copyright. That kind of crap is just a ploy to threaten someone in a trademark dispute without actually filing legal papers (especially if you don't really own the trademark).

Incorrect. Remember any legal action has legal consequences.

If I file a law suit that costs the defendant millions due to bad PR, and it turns out the law suit had no basis, the defendant will counter-sue me for the damages caused by a base-less law suite. However there are practical problems with this. In theory this was what would discourage DMCA abuse when the law was written, in the practical sense it does not.

A DMCA notice is not a legal action though. It's not filed with a court. It's basically a C&D letter send to a host or ISP that is serious business for the host or ISP (b/c they could lose their Safe Harbor protections if they don't follow it) but the only penalty that the letter-sender might possibly incur is a charge of perjury. The take-down notice basically states "I believe that X is really my copyright and that I have not authorized it to be distributed in such a manner. I agree that I believe this is the truth under penalty of perjury."

The statement is nebulous. To prove perjury, you would have to prove that they did not believe that the copyright was owned by them. Proving that is a tall order in court, and perjury seems like a slap on the wrist compared to the damage that can be down when the power of the DMCA-take-down-notice is abused.

This is why DMCA notices are basically an unchecked power given to 'rights holders' in a world ever everything that is produced gains an implicit copyright.

Reply on news.ycombinator.com