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Comment by mherdeg | Hacker News Reader

I'm kind of amazed at how effective this digital reputation management technique is:

* publish an exact copy of the offending content on a web site and include something that looks like a datetime which is earlier than the publication date of the offending content * tell the web site's ISP and other service providers that they're violating copyright, pointing to your fake content and using the providers' copyright-violation processes, which you know all about because your reputation firm does this stuff all the time

This also works for search engine deindexing, right?

It's just remarkable to me that (a) we all know this works super well and (b) it keeps working even though everyone knows about it.

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I’m not sure there’s anyone bothered by it enough to make a change. ISPs don’t seem to care. Individuals have other coping mechanisms (Tweet our the story) so it’s a lot of low impact incidents.

I think this is a PR opportunity for some “freedom loving ISP” that has a large global footprint and would benefit. In the US the ISPs are media companies do not so close.

Maybe we’ll see Google or Microsoft try but they too have too many media ties to try to upset dmca.

The most likely fix, I think, is for large enough orgs like the Guardian to sue Linode and the takedown issuer for fraud. That will cost a lot, but they may be interested.

If ISPs have a large risk of damages then they will be more careful. Currently it seems like a bot or intern issues these things and does not really care about anything but avoiding DMCA risk.

I didn't realise people bothered to put up fake websites. I thought a plausible-looking DMCA notification was sufficient to get a provider to take something down.

If it were so easy and cheap as many comments on this page imply, why aren’t we seeing this often used against large well-known businesses in bad faith?

E.g., someone creates a puny single-person LLC, and files DMCA notices against New York Times, Amazon blog posts, Apple press releases, et cetera. According to claims I see here, the content will have to be down for 10-14 days regardless of how quickly the counter-claim succeeds, which if used at the right moment could cause significant damage to the target/substantial profit to the attacker.

If this was happening, I’m sure the regulation would be fixed promptly with powerful lobbying from the aforementioned big players—perhaps by imposing a fee for issuing DMCA takedowns, increasing legal cost of a successful counter-claim, etc.

Such cases would’ve definitely be noticeable to the public, so I can only assume that they don’t happen because either (A) no one have thought of it yet, or (B) there’s some non-obvious cost to DMCA takedowns or successful counter-claims.

EDIT: Removed shady source for DMCA counter-claim info.

If it were so easy and cheap as many comments on this page imply, why aren’t we seeing this often used against large well-known businesses in bad faith?

Because medium sized companies know not to mess with large companies but don't care about small companies?

You wrote “not to mess with large companies”. What are the consequences of issuing a DMCA notice against content published by a large company?

They probably just send you a counter claim without bothering to take anything down. Perhaps also a nasty note from their lawyers?

Wouldn’t it put them in violation of a federal law? If they send a counter-claim without taking the content down, can’t they be sued for DMCA non-compliance? The law appears to mandate immediate takedown for certain period of time regardless of counter-claim status.

Playing devil’s advocate here, and may obviously be missing some points of the regulation.

I don't know about this. There's a difference between taking down supposed infringements from your users (or "subscribers") and your own material put on your own site by your own employees. I'm not sure that the DMCA mechanism is relevant for the latter.

Honoring a DMCA takedown isn’t ever required, but ignoring one strips away the safe harbor protections for that specific content. This in turn makes you liable for any copyright infringement of that content as if you had published it yourself. If it’s legitimate, you’ll presumably win the court case and quite possibly get your attorney fees back.

Thanks for patient explanation.

I guess, to sum up, the current system enables smaller players (commenters, vloggers, site authors) to publish on the Web through intermediaries of all kinds (like Linode or YouTube). Those intermediaries want to make sure they don’t get sued for the content they host, so they use safe harbor and observe DMCA.

Those enjoying more direct access to the backbone (metaphorically and possibly literally speaking) of the Internet trust their legal teams and don’t need safe harbor protections.

Thus if you are lucky enough to not need the safe harbor protections, you have the ability to bully smaller fish by issuing takedowns left and right.

That’s essentially right but the ability to use takedowns to bully the smaller fish comes from a slightly different source.

What the DMCA safe harbor provisions both try and succeed to do is remove those intermediaries from potential copyright proceedings. This allows them to flourish but also disincentivizes them from providing legal assistance to their customers— the ultimate lawsuit will be not be Giant Media Conglomerate vs Comcast ISP, it will be Giant Media Conglomerate vs John Doe.

So the fundamental problem here doesn’t really have anything to do with copyright, but rather the reality that fighting a lawsuit can ruin you even if you’re in the right.

If the content is the company's own, DMCA takedown doesn't apply.

If the content is a third party's, BigCo's option is to simply refuse the takedown, in which case the safe-harbour provisions (as you've been told repeatedly in this thread) don't exist.

Your understanding of the DMCA generally as expressed here is poor. You'd do well to read the law or a good explanation of it.

https://www.law.cornell.edu/uscode/text/17/

Subject matter, generally (see especially 106 & 106A): https://www.law.cornell.edu/uscode/text/17/chapter-1

Infringement and remedies, including DMCA safe-harbour provisions (section 512):

https://www.law.cornell.edu/uscode/text/17/chapter-5

EFF have a basic explanation: https://www.eff.org/issues/dmca

Lumen (previously the Chilling Effects Clearinghouse), has a longer explainer on DMCA Safe Harbour provisions: https://lumendatabase.org/topics/14

If you knowingly do so you're committing perjury which carries a potential 5 year sentence.

Then a bunch of people can recover their losses.

> 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.

A single person LLC does not protect from perjury charges.

Unfortunately DMCA perjury cases aren’t prosecuted.

Isn’t there a contradiction—if as you say DMCA perjury cases aren’t prosecuted, what’s there to lose for that hypothetical “DMCA troll” LLC?

I think the parent may just be suggesting that there's no need for the LLC wrapper, because it wouldn't hypothetically provide protection anyway.

DMCA perjury requires "knowingly" sending false reports. So far there's enough deniability for bigcos to get away with it.

This hypothetical troll wouldn't have that deniability. It would be very clear that they are knowingly making false complaints.

“Hello, I get paid tens of thousands of dollars per year to oversee DMCA reporting with innumerable false positives without reviewing whether or not short clips of content with commentary around it is fair use.”

There’s enough deniability for prosecutors to not care, but there’s also enough evidence that prosecutors could politely inform them that there is a pattern of misconduct.

big players are either their own ISPs, hosting provides or most likely have SLAs in place that absolve their ISPs from liability and allow the companies to handle DMCA claims directly by dedicated departments.

smaller players are subject to dealing with DMCA claims by proxy via their hosting providers. also, it would be easy for Amazon to prove bad faith by having many examples from a single claimant. smaller companies may only have to deal with a few claims per year from different claimants (still incredibly disruptive) and not have strong enough evidence to demonstrate bad faith.

So a BigCo tells their ISP “feel free to keep the content up and break DMCA regulations, we’ll deal with it”, just like that? Doesn’t it mean one or both of them violate a federal law?

I think there's a difference between running a website vs being a user on somebody else's site. A website must publish its registered agent address if it wants to take advantage of the DMCA system (i.e., receiving take down demands instead of lawsuits). E.g., Wikimedia receives take down demands as described at https://foundation.wikimedia.org/wiki/Category:DMCA.

I'm unclear what the difference is between how Wikimedia is set up and the situation with the Guardian and Mail.

That link above doesn't seem to contain everything that Wikimedia receives on its various sites, e.g., there's also https://commons.wikimedia.org/wiki/Commons:Office_actions/DM...

It doesn’t break the law. It just means if the content was in fact infringing then the ISP is also guilty of copyright violation.

They simply lose the safe harbor protection. So if they are sure it’s a false claim they can just ignore it.

The DMCA takedown provisions don't introduce liability for actions, they remove it, under a specific set of circumstances, given specific responses to infringement claims.

You don't "violate the DMCA takedown law" by failing to take down content. You simply lose protections offered by it.

The federal law in question that might be violated would be exclusive rights under copyright, 17 USC 106

For these there are both civil and (in certain cases) criminal remedies possible.

https://www.law.cornell.edu/uscode/text/17/106

Because that's a criminal offence (perjury) that carries a potential prison sentence, and they'd be liable for costs.

NYT, Amazon, Apple, etc aren't going to fuck about with that. They'd push for prosecution of people making false DMCA claims, and they'd sue for their losses.

TL;DR: the DMCA takedown provisions apply only to third-party service providers identified as a Designated Agent, and can be avoided by self-provisioning online services. Or finding a provider with balls.

The specific mechanism of the DMCA is that:

1. It is a protection afforded online service providers, specifically, against infringement liability. (17 USC 512(c))

2. Against copyright infringement (17 USC 512(c)(1)).

3. For third-party content (17 USC 512(c)(1)).

4. Of which the provider does not have specific knowledge that the content is infringing (17 USC 512(c)(1)(A)(i)). (More on this below.) And does not directly benefit monetarily (17 USC 512(c)(2), and acts to disable access expediciously (17 USC 512(c)(3)).

5. Where the provider has a designated agent. (17 USC 512(c)(2)

6. A valid notification request is received, (17 USC 512(c)(3)

https://www.law.cornell.edu/uscode/text/17/512

A consequence of all of this is that a self-serving online service provider does does not qualify for the relief as the content is not third-party. By designating itself as the Designated Party, it can choose to receive DMCA requests directly, and assume the risks of infringment claims itself.

There is nothing in the DMCA that says a service provider must act on a claim. Only that the liability protections offered apply only if it does. Linode, here, absolutely could have taken the principled stance that the content was not infringing, and refused to act on the notice it had received. Yes, this would incur a liability, but the overall legal risks of a patently false and malicious claim would be slight. I believe there are cases of this occurring.

NB: A longstanding criticism of the DMCA 512 provisions was that there was no liability for misrepresentations. That's now addressed in 17 USC 512(f), though I don't recall when this was added:

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.

Mail & Guardian would seem to have some remedy here, if they can successfully bring suit and collect judgement.

It's also possible that M&G could bring suit against Linode under 17 USC 512(g)(1) ("good faith" actions), though that's weakened by subsequent paragraphs. Informed legal opinion would be helpful here.

Note: I am a space alien cat, not a lawyer.

Thanks for the summary. I expect that the misrepresentations penalties would difficult or impossible to apply for takedown requests originating from outside the USA, as seems to be the case in this instance.

The risk, presuming one can find counterparties and venues to sue, is that this approach raises numerous legal liabilities of its own. Copyright violation carries both civil and criminal penalties, and might be aimed at numerous parties, including claims (DMCA, possibly other) against the hosting site of the pirated content.

Why not file a counter-claim and then make them attempt to prove their copyright in a real court?

The counter claim would do noting to prevent your own content from going down: the service providers very clearly don't care about the legitimacy of DMCA claims, they just automatically comply and let their customers suffer damages for all the false claims.

The DMCA requires contested content to be offline for at least 10 days, even if a counterclaim is filed.

If a counterclaim is filed, that period can extend to no more than 14 days....

Unless notice is received of a court action to restrain further publication.

17 USC 512(g)

https://www.law.cornell.edu/uscode/text/17/512

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