Comment by ikeboy | Hacker News Reader

Comment by ikeboy | Hacker News Reader

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>From the day the text was proposed, the fact that the only thing thar a DMCA takedown required to be sworn under penalty of perjury was that the complaining party represented a rights holder has been a frequent point of criticism.

This is wrong. Perjury also applies to having a good faith belief in the infringement.

>The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing. This requirement is not superfluous. Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed. We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed.

Perfect 10, Inc. v. Ccbill Llc, 488 F. 3d 1102 - Court of Appeals, 9th Circuit 2007

>A copyright owner who submits a takedown notice must include a statement, under penalty of perjury, that she has "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner." Id. § 512(c)(3)(A)(v)-(vi).

Hughes v. Benjamin, Dist. Court, SD New York 2020

> The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing.

You're citing ambiguous language in a case that wasn't actually about perjury to begin with.

Possible valid reading of that sentence: "The DMCA requires a complainant to declare that he has a good-faith belief that the use is infringing, and under penalty of perjury, that he is authorized to represent the copyright holder."

> Hughes v. Benjamin, Dist. Court, SD New York 2020

This is a district court case which means it isn't binding precedent for other courts, and likewise doesn't appear to be a perjury case.

It would be nice if people got charged with perjury for making false DMCA claims. I still haven't seen any evidence of that happening.

I responded to a comment saying no court has ever disagreed with a reading saying perjury only applies to the authorization part, with two examples showing otherwise. As far as I know, every court to have considered the issue has said that perjury applies to both parts. None of them were actually considering a perjury case, correct. Perjury prosecutions are extremely rare.

Re your claim of ambiguity, read through the rest of the decision. It explains the rationale of the perjury requirement.

>We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed.

Much harder to read this as you propose.

Both cases are obiter dictum, since it's not relevant to the ruling. But they provide a strong indication of what a court ruling on the perjury issue directly would say, and they would certainly be persuasive authority.

> Much harder to read this as you propose.

It has the exact same ambiguity. They even put the same comma between "under penalty of perjury that he is an authorized representative of the copyright owner" and "that he has a good-faith belief that the material is unlicensed."

> Both cases are obiter dictum, since it's not relevant to the ruling. But they provide a strong indication of what a court ruling on the perjury issue directly would say, and they would certainly be persuasive authority.

This was kind of my point. Having to bring in some dicta from unrelated cases because there are no actual perjury cases to cite pretty well implies that there are no teeth in the perjury requirement one way or another.

It's not as if there have been a lack of fraudulent DMCA claims to prosecute either.

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