Comment by tzs | Hacker News Reader

Comment by tzs | Hacker News Reader

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The problem here has nothing to do with the DMCA. The problem is that Google has implemented its own system that has little to do with the DMCA.

If it were handled the DMCA way, here is how it would go.

1. Someone complains to the hosting service alleging that you are violating their copyright.

2. The hosting provider takes down the material and notifies you. If you do not want to dispute this, that is the end of it.

3. If you want to dispute their claims, you notify the hosting provider. It doesn't really matter, as far as I recall, if you dispute the claims because you say the claimant does not hold copyright, or you say that they do but your use is covered by fair use, or any other mean.

4. The hosting provider puts your material back up, and tells the complainant that if they want to take it down, they need to take you to court, and provides your legal contact information for filing said suit.

If the claimant takes you to court, and wins, following the above procedure absolves the hosting provider of any liability for the infringement.

This is how it's working with hosting providers. Digitalocean didn't take my server down but said they need my reply for the accuser ASAP. I basically wrote this is fair use and I'm ready to go to court in the USA in some specific state/district (found a boilerplate of that letter from some law forum/site). Digitalocean said thank you and I never got a reply. They said I don't need to do anything else when it comes to them, they are satisfied. I knew the troll who didn't even live in the states, so I was confident.

If the claimant takes you to court and loses, there is no penalty, I assume? There's punitive damages in the US - any chance that would be applied to such a case?

Only if the work they claimed your video was infringing wasn't actually owned by them.

As far as the court case goes, it's basically just like it would be if the complainant had simply sued you directly for copyright infringement. If you win, the court can award you costs and attorney fees. I'm not sure how they decide whether or not to do so.

A claimant trying to use DMCA where it is not justifiable faces a couple other deterrents.

First, unless the claimant is representing themselves in the case, they are going to have an attorney, and that attorney is going to take into account Rule 11(b) of the Federal Rules of Civil Procedure [1]. If the claimant doesn't have a fairly reasonable case, he is going to have trouble finding an attorney.

Second, knowingly including false information on a DMCA takedown notice is perjury. The claimant can face criminal charges for that (although it would probably have to involve someone doing this on a large scale to get Federal prosecutors to prosecute).

Knowingly filing a false DMCA takedown also makes you liable for civil damages, including costs and attorney fees, incurred by the target of the takedown notice, the hosting provider, and in the case where neither the complainant or the target are the copyright owner, the actual copyright owner.

If the complainant who knowingly files a false takedown notice actually follows through and sue you for infringement, I'd guess that the damages due to you for the false notice would be handled there.

If the complainant isn't that stupid, and drops the matter after the notice and counter-notice, you could sue them over the false notice.

[1] https://www.law.cornell.edu/rules/frcp/rule_11

> Second, knowingly including false information on a DMCA takedown notice is perjury

I've reviewed the DMCA a few times and I am pretty sure this isn't true. It's supposed to be the "teeth" of the DMCA to prevent false claims, but the actual teeth are very blunted.

The requirements a DMCA takedown notice are[1]

1. you have to sign it as someone authorized to act on behalf of the copyright owner.

2. you have to identify the work you claim is being infringed.

3. you have to identify the work you want them to take down.

4. you have to give them your contact information.

5. you have to state that you have a "good faith belief" that the content is infringing.

6. Direct quote, and the only use of the word "perjury" in the notification requirements: "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed."

The only thing you must declare under penalty of perjury is that you are authorized to act for the copyright owner. The only other claim you make is that you are acting in "good faith", which is super fuzzy. An actor sending out notices on content detected by content-id bots is almost certainly acting in "good faith" if they haven't been made aware of potential errors by those bots.

[1] https://www.aclu.org/other/text-digital-millennium-copyright... (search for "ELEMENTS OF NOTIFICATION")

That seems like basically what's happening. I guess the only place where YouTube might be non-conforming is that they break down the complaints by individual piece of content, rather than by claimant.

Maybe youtube should by default bundle the complaints? Ideally you'd have rich tools for slicing and dicing a complaint and responding to different slices in different ways.

That's very much not what's happening. The 'content owner' made a claim and because of that gets all the ad revenue from the works in question, until YouTube decides in the uploader's favor. (but the uploader doesn't get the money back)

The content is never taken down.

> but the uploader doesn't get the money back

Not true

https://support.google.com/youtube/answer/7000961?hl=en

Throughout the dispute process, we'll hold the revenue separately and, once the dispute is resolved, we'll pay it out to the appropriate party.

The case where an uploader loses all their revenue is if the video is completely demonetized (or completely taken down in the case of a DMCA request)

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