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Comment by belorn | Hacker News Reader

Issuing a real legally binding DMCA takedown holds legal liability. Youtube id claims are not dmca takedown claims, and youtube is very clear on this distinction. You can not counter-sue a company for issuing a false id claim.

Issuing a DMCA takedown that is both false and meant in bad faith is an act of perjury. In theory the copyright holder could get jail time.

A interesting case is the video of a toddler dancing on youtube, 29s long, to a song. The Ninth Circuit held that copyright owners must consider fair use before issuing take-down notices. The case got settled afterwards.

This difference between DMCA takedown and ID claim is often discussed by youtube creators as both a boon and a curse. The good thing is that id claim does not impact any future standing with google or legal punishment beyond the loss of revenue from the video that get claimed. The bad side is that they get abused.

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> Issuing a real legally binding DMCA takedown holds legal liability.

I've seen several documented cases of DMCA abuse but I haven't seen a single case where a major company was punished for it, and I doubt they'd face any consequences substantial enough to overshadow the profits they've made abusing the process. If you've got examples though I'd love to see them.

There can be a lot fewer cases if they don't have to go through the process!

It seems like there should be a way to escalate from an ID claim to DMCA -- to reject the ID claim as a content creator and force the claimant to send a DMCA. Then you can dispute the notice if it's issued in error, or counterclaim if they're abusing the process.

If the creator has deep enough pockets to fund a lawsuit, a tortious interference claim could be filed if someone falsely asserts a copyright violation and messes with your monetization.

> Issuing a DMCA takedown that is both false and meant in bad faith is an act of perjury.

But extreme negligence is 100% allowed, so that clause doesn't matter.

Thanks for the references. So basically the bargain of the ID claim is that if someone's use wasn't fair, the penalty is relatively lenient vs what it could've been in court, but then the disadvantage is that you don't get a proper appeal when you consider something to be fair use?

This is like DRM in a way: it's a circumvention of the copyright system that removes protections/mitigations from the side of "the people" (the demos).

Such actions should void the copyright on the claimed media, either make a DMCA or put up with it. The use of this "side-channel with a supposition of benefit to favour media corps and no proper defense review or resolution" perverts the copyright system's balance in providing a deal between the demos and the creators (and other rights acquirers).

Google's facilitation of this (instigation?) IMO shows they've come along way from 'don't be evil'.

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