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.
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.
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.
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.
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...
They simply lose the safe harbor protection. So if they are sure it’s a false claim they can just ignore it.
Because medium sized companies know not to mess with large companies but don't care about small companies?
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.
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.
Copyright law is online at the Cornell University Law Server:
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
Playing devil’s advocate here, and may obviously be missing some points of the regulation.
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.
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.
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.
Unfortunately DMCA perjury cases aren’t prosecuted.
This hypothetical troll wouldn't have that deniability. It would be very clear that they are knowingly making false complaints.
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.
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.