Hacker News Reader

Comment by souterrain | Hacker News Reader

The following changes should be made to DMCA:

1. Forbid delegation of enforcement to third parties. If you’re the copyright holder, you or your actual attorney may be the only ones to file a complaint. The copyright holder is solely responsible for such DMCA complaints.

2. Complaints found to be invalid shall result in reimbursement by the copyright holder an amount equal to three times the costs incurred to defend the complaint, including time, legal fees, etc., to the aggrieved party.

3. Three strike rule: if a copyright holder commits a false complaint action three times for a particular work, that work’s copyright is immediately invalidated and shall revert to the public domain.

View on HN

1. There's no reason to prohibit agent relationships, as long as liability attaches to the rights owner.

2. Strict liability is a good idea, but the exact amount should be up to discretion of the court. Some cases are more egregious than others.

3. This needs to be a ratio. If thousands of complaints are valid, it should require more than 3 mistaken ones. And the penalty is too harsh. Instead, they should be required to actually sue to enforce their copyright, instead of filing complaints.

3. That's a great idea and something similar could be used on youtube videos and demonitization / takedowns.

I also think once these fixes are implemented, that the same should apply to trademark and patent infringement notices. Those also see widespread abuse, it's just not as prominent because the targets are small businesses.

How does that work?

As far as I'm aware, there is nothing in the law that looks even vaguely like the DMCA notice-and-takedown regime for patents or trademarks.

I do agree with you that there are a number of abusive legal games used to farm small businesses.

There's nothing in the law currently, correct. I believe a law similar to DMCA, but with some more protections as above, should be passed applying to accusations of patent and trademark infringement.

Yeah, #3 sounds like an invitation for abuse... keep submitting work designed to trick rights holders into submitting claims until you get three. If you have infinite chances, you will eventually get them to strike 3 invalid claims.

I wrote https://medium.com/@corporatebullies/why-the-shop-safe-act-i... in part to point out a related issue in regards to a proposed bill. Rigid three strikes laws are almost never appropriate.

Can rights holders be tricked into committing perjury?

Seems like they‘d have to do this on their own with no prompt from anyone else.

They can be made to be convicted of perjury. If you have enough trials, you're going to be falsely convicted a few times.

Sure but not at all what we are talking about here

Upload thousands of infringing videos of their content, and then start mixing in slight variations, and then content that appears to be infringing, but isn’t.

If you post enough copyrighted things, eventually they will accidentally request a non-violating thing be taken down.

> Can rights holders be tricked into committing perjury?

If I could interrogate your as long as I wanted, I am sure I could get you to perjure yourself three times. Keep asking slightly varied questions until I get you to answer similar questions two different ways.

> There's no reason to prohibit agent relationships

But the relationship between Casio and YouTube in this instance is not an agent relationship. Casio isn't hiring YouTube to handle a complaint for them. They're just using the DMCA to bully YouTube into taking down the video. YouTube is not Casio's agent.

What should happen is that Casio should have to file a lawsuit directly against the person who posted the video on YouTube; if it prevails in such a lawsuit, the court could then order YouTube to take down the video as part of its judgment. But unless and until that happens, YouTube would simply not be involved at all.

You're just saying that the DMCA notice system should be abolished.

But the system was established for a compelling purpose. Firstly, it provides a safe harbor to YouTube - nobody can sue YouTube for hosting infringing content if they comply with the DMCA. This is good. In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order, and this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content, and force the rights owner to sue for every piece of content.

> You're just saying that the DMCA notice system should be abolished.

I think the entire DMCA should be abolished.

> it provides a safe harbor to YouTube

Why should YouTube have a safe harbor over and above making users who post content provide an affirmation, valid in a court of law, that they are the rightful owners of the content? Any prudent provider of hosting for content to random people on the Internet would do this.

If the answer is that YouTube couldn't possibly do this for all of the millions of people who want to post content, how is that anything but YouTube's problem? Why should a draconian law be put in place simply to allow them to avoid having to do proper due diligence? Or to allow companies like Casio who want to bully people to be able to skip having to actually file a lawsuit?

> In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order

No, we'd have to say that, once YouTube shows the court the legally valid affirmation it got from the user, such a suit would be dismissed. Which means, in practice, that when YouTube's lawyers sent the lawyers for whoever was complaining (Casio in this case) a copy of that legally valid affirmation, Casio's lawyers would tell Casio that they had no chance of winning a lawsuit and they should drop it. And if Casio tried to sue regardless, any reasonable judge would dismiss the suit and tell Casio to stop wasting the court's time (if the judge didn't decide to slap a fine on them for a frivolous lawsuit).

> this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content

Which would then bring the obvious next question: how did you confirm that the someone else was the rightful owner of all the content? And the answer "we didn't" would mean the infringing website owner would lose the lawsuit.

What do you mean by legally valid? Is there a difference between the proposed "affirmation" and what a counternotice currently says?

>Which would then bring the obvious next question: how did you confirm that the someone else was the rightful owner of all the content? And the answer "we didn't" would mean the infringing website owner would lose the lawsuit.

In other words, YouTube wouldn't exist, because it's impractical for YouTube to verify every single video. No other website powered by user generated content would exist.

And now you know why the DMCA is needed. Unless of course you think we could do without any website hosting third party content.

> What do you mean by legally valid?

I mean the same standard that would be used for any other statement or deposition that was presented as evidence or testimony in a court. Normally that requires a statement made upon oath or affirmation and witnessed by a notary public or an officer of the court.

> Is there a difference between the proposed "affirmation" and what a counternotice currently says?

Yes, there's the obvious difference that the affirmation has to be provided before the content is posted, instead of after a DMCA notice has already been made (and in many cases the alleged infringing content will already have been taken down, assuming guilt instead of innocence).

Under a sane legal regime, YouTube would have an affirmation, under the standards described above, before it ever allowed any content to be posted. So its first response on receiving a complaint of copyright infringement would be to provide a copy of that affirmation to whoever was making the complaint. Then whoever was making the complaint would have to provide some kind of evidence that that affirmation was fraudulent in order to get YouTube to pay attention. They wouldn't just be able to assert without any evidence that the content was infringing and have it taken down.

In practice, under a sane legal regime, the vast majority of people who might want to post infringing content would not even be willing to go to the trouble of submitting an affirmation in the first place. The people who would (aside from large corporations) would be people who genuinely are creating something they want others to see, and want it enough to be willing to go through the affirmation process.

>I mean the same standard that would be used for any other statement or deposition that was presented as evidence or testimony in a court. Normally that requires a statement made upon oath or affirmation and witnessed by a notary public or an officer of the court.

You don't need a notary for affidavits, just a sworn declaration.

Anyway, would you require anyone who posts content to agree to US jurisdiction, as the counternotice process currently allows? And how would the penalties for copyright infringement after such an affidavit were submitted look like in your system, as compared to the penalties for copyright infringement currently, or compared to the penalties for submitting a false counternotice currently?

Do you realize there would be a significant chilling effect on fair use speech under your proposal?

> You don't need a notary for affidavits, just a sworn declaration.

I think this depends on the jurisdiction, but anyway, "sworn" still means someone like an officer of the court has to be present, and the affidavit has to show that that was the case. You can't just write "sworn" at the end of something you wrote with no one else present and call it an affidavit.

> would you require anyone who posts content to agree to US jurisdiction

It would be the jurisdiction that has legal power over the corporation that is hosting the content. So if that corporation is a US corporation, then yes, it would be US jurisdiction.

If claims of copyright infringement are going to be allowed at all (and if they're not, this whole discussion is pointless), then they have to be made under some jurisdiction. I believe what I said above is how such claims would be handled if the DMCA did not exist.

> how would the penalties for copyright infringement after such an affidavit were submitted look like in your system, as compared to the penalties for copyright infringement currently

They would be the same, since copyright infringement as an offense remains the same.

> compared to the penalties for submitting a false counternotice currently

I don't think DMCA penalties are a useful comparison since they're not the product of a fair and reasonable legal process to begin with.

> Do you realize there would be a significant chilling effect on fair use speech under your proposal?

There would? How so?

>You can't just write "sworn" at the end of something you wrote with no one else present and call it an affidavit.

I mean, I've personally submitted a declaration to a court, and all I did was digitally sign a document and email it to my lawyer. No notary required.

Re jurisdiction: the current law doesn't require anyone posting on YouTube to accept US jurisdiction to anyone who wants to sue for infringement - they only require that if someone wants to file a counternotice. I think this is good. Posting a video shouldn't open you up to jurisdiction everywhere, but insisting your content remain accessible in the US in the face of an infringement allegation should.

If your proposed affidavit doesn't increase the penalties for infringement, then the only purpose is to enforce jurisdiction?

Re chilling effect: it depends on how relevant this affirmation is. I still don't think I understand exactly what you mean. But if it's enough to chill some infringement, then it's going to chill some legitimate speech as well, and if it's going to significantly chill infringement then it will significantly chill legitimate speech. That's the lesson of history. Every attempt at making it easier to censor has this effect. You can't avoid this trade-off.

> I've personally submitted a declaration to a court

A declaration is not the same as an affidavit. You are correct that a declaration does not require you to swear to it in front of anyone else, whereas an affidavit has to be sworn to before a notary or an officer of the court. But a declaration does have to include a statement that everything in it is true under penalty of perjury.

That said, US law does allow declarations in many circumstances to be used instead of affidavits in Federal courts (I don't think all state courts do that), so the difference might be moot for this discussion.

> Posting a video shouldn't open you up to jurisdiction everywhere, but insisting your content remain accessible in the US in the face of an infringement allegation should.

I don't see the difference in practice. If YouTube takes down your content, they're going to do so everywhere, not just in the US, even if they're technically responding to a DMCA takedown notice that is based on US law or a court order issued by a US court. So if you aren't willing to be under US jurisdiction regarding content you post, you shouldn't be trying to post it on YouTube in the first place.

Also, you have already pointed out elsewhere in this thread that YouTube already makes people sign a contractual agreement before they post. That contractual agreement is going to be judged under US law. So people are already accepting US legal jurisdiction regarding contract law before they post on YouTube. Accepting the same jurisdiction with regard to any potential copyright infringement claims does not seem like much of a difference to me.

> if it's enough to chill some infringement, then it's going to chill some legitimate speech as well

The same argument, if it were valid, would apply to the DMCA. The DMCA appear to me to be chilling a significant amount of legitimate speech.

However, I don't think this argument is valid to begin with. I don't see any reason why anything that discourages infringement also has to discourage legitimate speech. The DMCA may well do both, but I see that as a problem with the DMCA, not something that can't be avoided.

>So if you aren't willing to be under US jurisdiction regarding content you post, you shouldn't be trying to post it on YouTube in the first place.

You might think that everything you post is fine under US law (after all, you signed a contract with YouTube saying so), but you aren't willing to defend yourself in US court, if someone were to challenge that. You'd rather just let the content be taken down if challenged. 99.9% of the people that feel this way won't have any issues, but the few that do should simply have their content removed, and shouldn't be forced to face US jurisdiction.

>So people are already accepting US legal jurisdiction regarding contract law before they post on YouTube. Accepting the same jurisdiction with regard to any potential copyright infringement claims does not seem like much of a difference to me.

YouTube is not in the business of suing people frivolously. They rarely sue anyone at all, and the few times they do sue, they probably have a decent case. One might feel comfortable contracting with a company like that, knowing their reputation will take a hit if they file such a suit, but not feel the same about any arbitrary company making an infringement allegation.

>The DMCA appear to me to be chilling a significant amount of legitimate speech.

Sure, but anything chilled by the DMCA I think is similarly chilled by your proposal. Speech chilled by the DMCA:

1. By people who don't want to face US jurisdiction just to be able to keep their legitimate content posted 2. People who aren't legally savvy and don't feel comfortable filing a DMCA counternotice (I've seen plenty of people who didn't understand how to file such a notice, or who feel uncomfortable with the potential legal consequences of such)

It seems to me that your proposal equally chills both of those categories.

>I don't see any reason why anything that discourages infringement also has to discourage legitimate speech

Because whether something is fair use is often ambiguous. If it was immediately obvious to everyone, court cases would be resolved much sooner. Moving the bar will move more cases into the ambiguous area. There might be clever ways around this, but you need to be clever. E.g. giving judges more power to award discretionary sanctions will make cases riskier to bring (or to defend), which changes incentives, so it doesn't solve the issue and isn't clever enough. Everything is trade-offs.

> It seems to me that your proposal equally chills both of those categories.

People who don't want to face US jurisdiction to keep legitimate content posted are going to be "chilled" as long as the place where they want to post it is in US jurisdiction. But I don't see how "chilling" is a reasonable way to describe this. Every corporation is going to have to be under some jurisdiction; there's no way for anyone to post content that's simply free of any legal jurisdiction, so calling it "chilling" to have to pick one doesn't seem reasonable to me.

> People who aren't legally savvy and don't feel comfortable filing a DMCA counternotice

People who don't feel comfortable with legal documents are going to be "chilled" by any activity that requires them to take legal responsibility by signing a legal document. But again, I don't see how "chilling" is a reasonable way to describe this. Unless you are advocating that people be able to post content with no legal responsibility whatever, which doesn't seem reasonable.

> whether something is fair use is often ambiguous

Yes, and that's why we have law courts, to allow both parties a fair chance to make their case in ambiguous situations before a ruling is made and action is taken.

> Moving the bar will move more cases into the ambiguous area.

What I propose does not "move the bar" at all; it doesn't change the legal definition of what copyright infringement is or what the allowed exceptions are.

>Every corporation is going to have to be under some jurisdiction; there's no way for anyone to post content that's simply free of any legal jurisdiction, so calling it "chilling" to have to pick one doesn't seem reasonable to me.

It's chilling to require everyone everywhere in the world to accept US jurisdiction in order to post on US websites. I like the system where people can post whatever they want, which will get taken down upon a DMCA notice if they don't want to accept US jurisdiction at that point.

>Unless you are advocating that people be able to post content with no legal responsibility whatever, which doesn't seem reasonable.

Here I think we're talking about US residents. If they post content, they're liable for regular copyright infringement in a lawsuit. But your proposal would make them subject to criminal prosecution for perjury, at least. If you weren't proposing any additional liability, there's be no need to go beyond the existing contracts.

>Yes, and that's why we have law courts, to allow both parties a fair chance to make their case in ambiguous situations before a ruling is made and action is taken.

But you're proposing getting this wrong subjects one to potential criminal liability, which we don't have in the current system. We do have criminal copyright infringement, but that's narrower than just infringement.

You're right on moving the bar. The rest of that paragraph stands, however - ambiguous cases will be chilled more than under the current system.

> It's chilling to require everyone everywhere in the world to accept US jurisdiction in order to post on US websites

No, it's not, it's just standard law. As I said, everyone who wants to post on YouTube is already agreeing to a contract under US contract law (you yourself first pointed that out).

> Here I think we're talking about US residents.

I'm talking about anyone. Are you arguing that people should be able to post content, for free, from anywhere in the world, to YouTube with zero legal liability whatever, as long as they agree that the content can be taken down if there's a copyright infringement complaint?

> your proposal would make them subject to criminal prosecution for perjury, at least

If they made false claims about their copyright to what they post, yes. But if their claim is correct, it's not perjury. How is that a problem?

> you're proposing getting this wrong subjects one to potential criminal liability

I assume you're thinking of inadvertent infringers here. In the case described in the article, the person who posted the content knew (at least, so they claim) that they created all of that content themselves. Indeed, since they've submitted a DMCA counter notice, they have already made a statement to that effect under penalty of perjury (since a counter notice requires that). So there's no question of inadvertence or of risking criminal liability for something they didn't do. Either their claim is correct, in which case their statement is not perjury, or they are deliberately lying, in which case it is and should be punished as such.

In the case of inadvertent infringement, someone who wasn't confident enough to make a statement under penalty of perjury wouldn't make one, so they wouldn't post the content at all. And if it is infringing, that's what we want. Unless YouTube gave them the "it's not worth the bother to me" alternative, in which case they wouldn't be making any statement under penalty of perjury to begin with, and inadvertently infringing content would be taken down exactly as it is now, on receipt of a complaint that YouTube judges to be legitimate.

If you are saying that someone might not be confident enough in their understanding of fair use, for example, to be willing to state under penalty of perjury that their content is fair use, whereas they would post it if they didn't have to make such a statement, yes, that's true, and that's why I suggested the "it's not worth the bother to me" alternative. In fact, the "it's not worth the bother to me" alternative basically replicates what we have now under the DMCA. But the difference is that the DMCA imposes the same process on all cases, instead of letting people figure out by the natural process of evolution what process works best for different types of cases.

> ambiguous cases will be chilled more than under the current system

Again, I don't see how. Ambiguous cases now go to court. Ambiguous cases under my proposal might, but might not, depending on how the parties judge their positions after both sides have given each other the evidence they have. That's less "chilling", not more, because the risk of going to court and having to bear the costs is the chief "chilling" effect.

It's not standard law to require them to accept jurisdiction by anyone who wants to sue.

I'm arguing that people should be able to post to YouTube from anywhere, and be subject to liability wherever they normally have jurisdiction, plus be subject to liability if sued by YouTube as per the contract with YouTube.

>If they made false claims about their copyright to what they post, yes. But if their claim is correct, it's not perjury. How is that a problem?

It creates criminal liability for ambiguous fair use cases. And if you don't create additional liability, then your system is no different than the current one.

>In fact, the "it's not worth the bother to me" alternative basically replicates what we have now under the DMCA. But the difference is that the DMCA imposes the same process on all cases, instead of letting people figure out by the natural process of evolution what process works best for different types of cases.

DMCA doesn't impose it, it just offers it as an option to companies that want the safe harbor. A company is free to ignore a DMCA complaint if they don't think it's valid. They still keep the safe harbor for other cases, they just lose it for that specific notice.

>Ambiguous cases now go to court.

Some ambiguous cases get reinstated after a counternotice is submitted. In your system, a lawsuit would need to be filed. This would mean some things stay down.

> It creates criminal liability for ambiguous fair use cases.

Ah, ok, I thought that's what you might be referring to. I covered that later in my post, suggesting the "it's not worth the trouble to me" alternative for such cases.

What the DMCA does not provide is a way for people like the person described in the article, who know they created all the content they are posting themselves, to tell Company Y (YouTube or Github or whomever) that they are confident enough in their legal ownership of the content, because they know they created it themselves, to say so under penalty of perjury, so Company Y would already have a pre-set response to any claim of infringement. See further comments below.

> Some ambiguous cases get reinstated after a counternotice is submitted. In your system, a lawsuit would need to be filed.

Not at all. In such a case, under the DMCA, the content gets reinstated because Company Y believes the counter notice to be legitimate. In my proposed scenario, the content would never be taken down in the first place, because Company Y would have the equivalent of the counter notice (the legal document from the person who posted the content) already in hand when the complaint from Company X arrived, and would simply provide a copy to Company X (Step 2 of my process).

So this content would be chilled less under my scenario, since it wouldn't be taken down at all, whereas under the DMCA it would be taken down for up to 14 days (or even longer if it took longer for the counter notice to be filed).

In an ambiguous case, the rights owner provides their "proof" to Y, which then removes the content because they don't want to take the legal risk. Hence, content is chilled that isn't chilled under DMCA.

I'm not responding to the first part of your comment, there's too many moving parts in your proposal spread across too many different comments for me to be able to figure out what you mean here. I think this conversation has gone on long enough.

> In other words, YouTube wouldn't exist, because it's impractical for YouTube to verify every single video

I never said they had to "verify every single video". They just need the legal document I describe. The whole point of having the document is that that is the "verification"; they don't have to try to independently scrutinize everything. They are putting the legal burden on the person posting the content, which is where it belongs.

The "obvious next question" I gave was for websites that don't have the legal document I describe. Whicn some random person trying to let other random people post infringing content would not have. But YouTube certainly could have it. The only reason it doesn't now is that we live in an insane legal regime that thinks the DMCA is just fine, instead of being the draconian mess that it is.

> No other website powered by user generated content would exist.

Websites powered by user generated content have an obvious way to exist under a sane legal regime: if there is a cost involved in obtaining the appropriate legal affirmation from users who post content, then charge those users for the services being provided, and include in those charges the costs of dealing with the legal requirements.

But again, we live in an insane world where it's thought to be better to prop up the ad-supported business model, with all of its many serious flaws, than to have the law actually be reasonable and force large corporations to figure out business models that actually serve their users instead of selling their data.

So you would effectively destroy all free user generated content sites, and a good portion of the cheap ones as well.

Just good to make that clear upfront when evaluating your proposal, so people could decide if this is really less draconian than the current system.

> So you would effectively destroy all free user generated content sites

If it's impossible to do reasonable due diligence without charging users, yes. Posting content has a cost; it is entirely reasonable for users who want to post the content to bear at least a portion of that cost.

> a good portion of the cheap ones as well

Depends on what you mean by "cheap" and how much it would cost to actually do reasonable due diligence in a sane legal regime. I don't think it would cost much at all per user, particularly for a site like YouTube which has so many users.

Which brings up another point: a large corporation like Google, owning a site like YouTube, is precisely the kind of corporation that ought to figure out a cheap way to do reasonable due diligence and handle things like having people provide a legal document before they upload content, and work with the legal system to develop a way of dealing with this that is fair and reasonable to all parties. And yet they are too lazy to do that, and depend on draconian laws instead to give them a supposed "safe harbor" against claims that, in a sane world, they would be able to refute and dismiss with minimal effort.

And, further, the government is precisely the entity that, when large corporations fail to do what they ought to do, is supposed to make them do it, as the representative of the interests of the people. What our government did, instead, was to simply capitulate to the demands of the large corporations, and to fail to require them to do any due diligence at all, instead putting all the burden on the individuals who are posting legitimate content they created that gets mistaken by some corporation for copyrighted content--or the corporation simply decides not to care whether the content is infringing or not, because they see value in showing everyone else that they can bully whomever they want and not get stopped.

And you are arguing that all this is perfectly fine and proper. Just to make that clear upfront so people know what you are really saying.

YouTube did come up with a solution to one of the issues with DMCA - that it requires a manual report. They allowed sophisticated rights owners to upload content and then automatically flag any uploads that match. This is done outside of the DMCA and has no negative effect on users accounts, and comes with an appeal option. This is somewhat of an improvement on the DMCA, and it's voluntary for rights owners so it doesn't violate the DMCA. It's successfully reduced the number of DMCA complaints YouTube receives.

I still don't quite understand what aspect of the law you consider draconian. Is removing a video for 14 days such a terrible downside that you'd get rid of the whole framework? Or are there other parts you object to?

As above, I don't believe the DMCA is perfect. So please don't accuse me of thinking it is. I think penalties for false claims should be increased, I think false claims should be strict liability and antitrust per se. But I think getting rid of the entire framework would be a mistake.

> I still don't quite understand what aspect of the law you consider draconian.

The fact that it accepts complaints as factual and valid without evidence and without any legal due process for conflicting claims. Conflicting claims are supposed to be decided by a court, and neither party is supposed to have their claim accepted as fact and acted on until a court has decided.

Accepting a DMCA complaint doesn't mean it's factual or valid. It simply means the content is removed for 14 days, if a valid counternotice is submitted and no lawsuit is filed.

So to be clear - the 14 day period is what you consider draconian?

> Accepting a DMCA complaint doesn't mean it's factual or valid.

Yes, it does, because the content gets taken down. That means treating the content as if it does infringe copyright. That means treating the claim of infringement as valid. Saying "well, we aren't accepting it as valid, but we're still taking down the content anyway" is just sophistry. Taking down the content is accepting the claim as valid, or would be in any sane legal regime. But we don't live in a sane legal regime.

Wait, it looks like you don't want what Youtube is today at all. There's no way I'm going to go through a legal notarization process and pay a price to show what my model of dashcam looks like.

I don't really care about being Content ID'd or DMCA'd. I don't want a tool where I have to pay money and go through some bloody legal process to upload a video. Getting a DMCA takedown rarely is far preferable to me.

Instead of trying to ruin my YouTube, why don't you go create LegalTube or something where things are like what you say.

> I don't want a tool where I have to pay money and go through some bloody legal process to upload a video. Getting a DMCA takedown rarely is far preferable to me.

But as you describe it, just having YouTube take down your content whenever somebody complains of copyright infringement even without the DMCA would satisfy you. So if YouTube just had you sign a contract that says "if someone complains that something you posted infringes their copyright, and we have good reason to believe the complaint is legitimate, we'll take down your content and you have no legal recourse", you would be OK with that.

All of which is fine; but the DMCA means that I have to accept the same terms from YouTube, or anyone else, even if I would prefer different ones. In short, DMCA is a one size fits all solution that doesn't allow different people with different preferences to find solutions that work for them.

> Instead of trying to ruin my YouTube, why don't you go create LegalTube or something where things are like what you say.

I can't because it would be against the law. Why don't you get them to repeal the DMCA so that people can try different solutions for different needs, the way things are supposed to work?

You can create legaltube, require everyone to sign a power of attorney to a law firm for the sole purpose of automatically filing counternotices upon any DMCA notice. Does exactly what you want. Good luck getting users.

YouTube not existing is not too contrary to one of HN readers' interests. It looks to me that without centralized social media, the web will become more like the old days of decentralized self-hosted websites.

One of two things must be true. Either this legal affirmation is simple enough to get that it doesn't actually reduce infringement much (and thus making infringement much more of a problem by removing any way of handling it other than lawsuits), or it's more complicated and creates a significant barrier to legitimate works being published.

> One of two things must be true.

No, you are simply setting up a false dichotomy. You are also ignoring the fact that, in a sane legal regime, if a large number of people legitimately want to post content to some place like YouTube, and that place is charging users directly for their services, as they should, then places like that can simply ask the sane legal regime to consider ways of letting people, for example, provide a single legal affirmation when they sign up for an account that covers all content they post under that account. Then the site could just have a reminder on the "post this content" screen that basically says "remember that you gave us a legal affirmation which makes you liable for any copyright violation, so if we get a claim of copyright infringement and it turns out it's legitimate, we're coming after you".

Legal systems have been dealing with reasonable issues like this since forever. A sane legal system is perfectly capable of evolving in response to new technologies, without compromising basic principles like "innocent until proven guilty", requirements to back up legal claims with evidence, handling claims through appropriate channels and not short-circuiting them, and fairness to all parties.

It's not a false dichotomy, it's an unavoidable trade-off. You haven't given enough details on your proposal for me to tell where this trade-off is made, but you can't avoid this trade-off.

Now you seem to be implying this affirmation is simply a contractual indemnification, which of course YouTube already has:

>To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless YouTube, its Affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Service.

>For example, the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so.

It's not clear to me from the rest of your comments whether you believe this to be sufficient. If it is, then clearly this isn't enough to prevent infringement, and killing DMCA as an option would make it significantly more difficult to remove infringing content. Which might be what you want, I don't know. But the trade-off is real.

>Legal systems have been dealing with reasonable issues like this since forever. A sane legal system is perfectly capable of evolving in response to new technologies, without compromising basic principles like "innocent until proven guilty", requirements to back up legal claims with evidence, handling claims through appropriate channels and not short-circuiting them, and fairness to all parties.

Legal systems have been making a series of trade-offs for a long time. The trade-off here is that sometimes content is removed for up to 14 days and then put back. In exchange for that, there's a way for rights owners to resolve issues out of court.

> Now you seem to be implying this affirmation is simply a contractual indemnification

A sworn statement under oath is not the same thing as a signed contract, so no, I am not implying this at all.

> clearly this isn't enough to prevent infringement

This is not "clear" to me at all. In the case described in the article, it is not clear that any infringement occurred. Casio claimed that the content was infringing, but the person who posted the content, and who has described in detail how and why he created it, claimed it wasn't. I personally believe the person who posted the content, not Casio, given everything said in the article; but it's not up to me, or you, or Casio or the person who posted the content to make a final determination on that if there's a conflict. It's up to a court of law.

In other words, your statement here is a great illustration of the problem I have with the DMCA: whether or not something is "infringement" is decided on the say-so of whoever complains, not by a fair legal process. You have simply assumed that every claim of "infringement" must be valid. You can't assume that.

> Legal systems have been making a series of trade-offs for a long time.

Yes, and the way they have been doing so in cases where you have two parties making conflicting claims is called a court of law. The parties come into court and argue their cases, and the court makes a ruling. That is what is supposed to happen.

What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it. That's not how the legal process is supposed to work. Particularly when the party that is getting its claim accepted as fact is the party with far more resources for a legal battle if there is going to be one, and the party who is forced to try to fight if they object is the party with far less resources to do the fighting. The law is supposed to protect the weak against the strong. It's not supposed to "protect" the strong against the weak.

I never assumed that. The DMCA never assumes that, which is why there's an entire section about counternotices.

The fact that YouTube receives many legitimate complaints of infringement is common knowledge. If you genuinely believe this isn't the case, look through their transparency report.

>What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it.

All they need to do is file a counternotice, which is less difficult than the affirmation you're proposing, if you need a notary. And then if the rights owner doesn't like it, they need to go to court. Is the 14 day period for this to happen really that objectionable? If it was changed to 1 day, would you be ok with it?

> The fact that YouTube receives many legitimate complaints of infringement is common knowledge.

No, the fact that YouTube receives many complaints of infringement is common knowledge. How many of them are actually legitimate is impossible to judge since in many cases the content is now invisible and no due process was ever applied.

> look through their transparency report

And then look at this, for example:

https://www.eff.org/deeplinks/2012/07/top-10-takedowns-googl...

> Is the 14 day period for this to happen really that objectionable?

It's not a matter of how "objectionable" the 14 day period is. I object to the entire premise of the law in the first place, that someone should be able to make a claim that someone else is violating the law (that's what copyright infringement is), and have that claim acted on as if it were valid with no legal due process. Taking the content down based on the claim alone is acting on the claim as if it were valid. It doesn't matter if there's a way to reverse the action in 14 days, or even 1 day. Legal claims are not supposed to be acted on as if valid at all without legal due process.

Sure, there's plenty of abuse. That doesn't mean there aren't plenty of legitimate notices. I don't think you can seriously tell me you don't think there's a significant amount of legitimate DMCA notices. They can't all be abusive.

You're making what amounts to a deontological challenge to the law, which I reject. The question for me is which legal framework leads to the best results. If you're not trying to answer that question but are instead trying to make sure it comports with some rule you think laws should follow, then I'm not going to be able to convince you within the framework you're working in, and vice versa. But we should understand the difference in frameworks, if that's what's really going on.

Also, all the DMCA does is create a safe harbor. It doesn't require the site to take down the content. They're free to do their own investigation and refuse to take it down, they just run the risk of being liable if they get it wrong.

> all the DMCA does is create a safe harbor. It doesn't require the site to take down the content. They're free to do their own investigation and refuse to take it down, they just run the risk of being liable if they get it wrong.

And yet, even the corporations like YouTube who can most afford to do the latter--to both investigate claims on their own, and to defend their decisions in court--don't. So this alternative is meaningless in practice.

Also, you say elsewhere that YouTube is not the business of suing people frivolously (with which I agree), so a person who wants to post content might feel ok making a contract with them but not ok about being subjected to a lawsuit by some arbitrary company.

Now take this a step further: wouldn't it be nice if YouTube, a company who far more afford to do so than the average person, were to include in their contract that, if they find that an infringement claim against a user's content is invalid, they will keep the content posted and defend it, if necessary, in court, and not require the user to do so? Or, better yet, they could give the user the option: either the user signs up for the "YouTube will defend my content if they believe it's legitimate" option, and provides the legal documentation supporting their legal ownership of copyright for the content they provide; or the user checks the box that says "if anyone complains that my content is infringing their copyright, just take it down and leave it at that, it's not worth the trouble to me".

That, or something like it, is what I would expect to happen in a sane legal regime, where the law did not impose a one-size-fits-all solution on everybody, but treated everyone fairly and reasonably and allowed people with different preferences to find different solutions that suited them. But the DMCA "chills" all of that by providing even large corporations like YouTube, who least need it, a "safe harbor" that absolves them from having to do any work at all on actually figuring out how to meet the different needs of different users.

YouTube does, in fact, have a program to defend fair use, and they reject DMCA notices in those cases. But it's expensive and they can't do it in every case. Lawyers are expensive.

YouTube gets sued enough by idiots who think the DMCA safe harbor doesn't apply for whatever reason.

Anyway, I disagree that YouTube doesn't need the safe harbor. If they had to pay a lawyer for a minute of time for every DMCA request received, they'd lose money.

YouTube did innovate. They created a system for the largest content creators which automated complaints and created a special appeals process, which discourages DMCA complaints. They also placed protections on this program and ban people from it that submit too many false complaints.

> You're making what amounts to a deontological challenge to the law, which I reject. The question for me is which legal framework leads to the best results.

It appears that we do indeed have different fundamental beliefs about what the law is for, and I agree that we're not going to resolve that kind of basic difference here.

However, I do not think your implied dichotomy between applying "deontological" rules and judging by "which legal framework leads to the best results" is valid. For how do we judge which results are "best"? We can't just continue to judge by results, because that is an infinite regress. Sooner or later we must reach a point where we are simply applying some kind of deontological rule to prefer one state of affairs over another.

It is true that I am applying a deontological rule "earlier" in the process, so to speak, than you are in this case. That is because I do not think that "judging by results" actually helps much in cases like this, because we simply do not have enough knowledge to reliably compare the results we have, under the current DMCA regime, with the results we would have if the DMCA were just abolished and we went back to relying on previous law (which is basically what I propose), or if we adopted some other course. We can try to make plausible arguments, but in most cases, as in this case, we simply end up with opposing sides each making plausible arguments for their side, and neither one having a clear advantage in that regard. Which means we are just back to applying deontological rules at square one anyway.

As for the specific deontological rules I am applying, they are based on the same kind of skepticism regarding how much we actually know about how to govern, how to construct legal regimes, how to make public policy, etc. It seems to me that as a society we are vastly overconfident about our ability, or our legal and political leaders' ability, to craft policies that effectively address issues much beyond the very basic rules that are needed for any civil society--the basic common law crimes and civil offenses and the legal processes that have evolved over centuries to deal with them in a reasonable way. Even the concept of copyright itself is already going beyond those basic rules; but at least, before the DMCA (and before other laws that have done things like greatly extend copyright and patent terms and allowed for basically infinite renewals), copyright was dealt with using the same basic framework as other civil offenses like torts.

The DMCA, viewed as charitably as possible (note that I don't actually believe this charitable view is entirely correct, since I suspect the motives of our legal and political leaders as much as I suspect their capabilities to effectively address issues), was an attempt to craft a more "efficient" way of dealing with copyright than the traditional framework for civil offenses. What it has in fact done, IMO, is prevent any actual innovation in the field of how to reconcile whatever is valid in copyright law with the technological changes introduced by computers and the Internet and the additional things people now want to do as a result of those technological changes. (The DMCA is by no means the only failure in this respect, but it's the one we're focusing on here.) Instead of a large corporation like YouTube, which, as I've said, is in the best possible position to figure out how to serve users with various preferences about how they want copyright complaints to be handled, actually figuring out how to do that, they are just punting based on the "safe harbor" the DMCA provides. Instead of people figuring out by natural evolution what the best ways are to meet the various preferences of users and respect the valid copyright claims of content owners, we are all operating under a one-size-fits-all system that was imposed by lawmakers well before something like YouTube even existed. There wasn't even an urgent need--at least, not according to anyone but media corporations unwilling to update their business models--for any legislation in this area at all in 1998. But we are still having to live under it now, 22 years and many orders of magnitude more Internet users later. What kind of sense does that make?

I mean, my view of the DMCA is pretty similar. It makes it more efficient, and only the ambiguous cases are likely to actually end up in court. There's an issue with abuse, and I think strengthening the penalties for abuse and shortening the 14 day period to perhaps 4-7 days to account for faster speeds in the internet era can address that. I don't see the need to get rid of it completely.

> shortening the 14 day period to perhaps 4-7 days

I note that the Copyright Office report you linked to elsewhere in this discussion says (p. 6, top):

"[T]he current statutory timeframes to resume providing access to content following receipt of a counter-notice currently ill serves both users and rightsholders given current business models and the realities of federal litigation. Ten to fourteen days is both too long for legitimate speech to be blocked, and too short for a rightsholder to realistically prepare and file a federal lawsuit to prevent the return of infringing materials."

Shortening the first period addresses the first issue (somewhat), but not the second. The root problem here is the same issue I've raised elsewhere regarding DMCA notices, applied to counter notices: just as content gets taken down on receipt of a notice, without legal due process, content gets reinstated on receipt of a counter notice, without legal due process. So just as the notice process invites abuse by companies bullying legitimate posters of content that is not infringing, the counter notice process invites abuse by posters of content that is infringing.

In both cases, the system favors the strong (companies that want to bully people), or at least the illegitimate (posters of infringing content who don't think the legitimate owners can file a lawsuit within 14 days of a counter notice) at the expense of the weak and legitimate (legitimate posters of non-infringing content, and legitimate owners of content who can't move fast enough to protect it). That's not how the law is supposed to work.

You might want to check out page 153 of https://www.copyright.gov/policy/section512/section-512-full... for some examples of innovation inside the DMCA system.

I see examples of "innovation" in handling the DMCA process (and I note that the report says rightsholders claim these add unnecessary friction into the process, and that these changes "do not appear to be fully honoring" the DMCA requirements).

I don't see any examples of innovation in allowing different users with different needs and preferences to have different processes altogether.

I also note that the report overall is saying that the DMCA system is not working well.

Users that don't want to engage with the system can simply not file a counternotice. What other form of engagement would you like?

That affirmation would be meaningless. Without the DMCA's safe harbor, YouTube would be on the hook for copyright infringement even if the person posting the video affirmed super seriously that he owned the content.

> Without the DMCA's safe harbor, YouTube would be on the hook for copyright infringement even if the person posting the video affirmed super seriously that he owned the content.

I have no idea where you are getting that from. If YouTube has prima facie evidence that the content is not infringing, which is what the affirmation provides, then any lawsuit against them would be dismissed unless the plaintiff could prove that the affirmation was fraudulent. And even then all YouTube would be liable for would be taking down the content by court order, unless the plaintiff could also show that YouTube knew or should have known that the affirmation was fraudulent.

What the DMCA does is remove any requirement on the plaintiff to prove that content they claim infringes their copyright, actually infringes their copyright. The plaintiff can simply assert it and have that assertion taken as fact without proof. That's not "safe harbor"; that's an egregious misuse of the law.

> If YouTube has prima facie evidence that the content is not infringing, which is what the affirmation provides, then any lawsuit against them would be dismissed unless the plaintiff could prove that the affirmation was fraudulent.

That's not how this works. If the plaintiff owns the copyrighted material, it would be trivial to show that the affirmation wasn't true.

> And even then all YouTube would be liable for would be taking down the content by court order, unless the plaintiff could also show that YouTube knew or should have known that the affirmation was fraudulent.

Where did that "knew or should have known" standard come from?

> If the plaintiff owns the copyrighted material, it would be trivial to show that the affirmation wasn't true.

The question is not whether the plaintiff owns "the copyrighted material". The question is whether whatever was posted is the copyrighted material, or derived from it under circumstances that do not fall within one of the exceptions given in copyright law (such as fair use), or not.

That is a question that should be decided, if it gets to that point, by a court of law. It is not a question that should be decided by the bare assertion of the plaintiff, as it was in this case under the DMCA regime.

> Where did that "knew or should have known" standard come from?

From the general language of civil law for assessing liability.

>That is a question that should be decided, if it gets to that point, by a court of law. It is not a question that should be decided by the bare assertion of the plaintiff, as it was in this case under the DMCA regime.

Another downside is that forcing all such cases to court hurts innocent infringers. If the only way a company can remove content is by suing, there will be a lot more suits, which is a lot more expensive on both sides, including on those that did not infringe at all and on those that infringed inadvertently. I'd prefer if the latter category simply got a DMCA notice and went away, rather than having to go to court. Both sides, in my scenario, would prefer the DMCA solution rather than the court solution, but you don't.

> If the only way a company can remove content is by suing

Not at all. I've already described elsewhere in this thread, at least twice now, what would happen in a sane legal regime, but I'll do so once more since this discussion is covering several subthreads.

Step 1: Company X complains to Company Y that content they are hosting is infringing Company X's copyright.

Step 2: Company Y sends Company X a copy of the legal document, sworn to under penalty of perjury, from the person who posted the content, that says they are the legitimate owner of the copyright to the content they posted. At this point, if Company X doesn't actually have a valid claim but is simply bluffing or pushing the envelope, nothing further happens.

Step 3: Company X, who believes they have a valid claim, presents evidence to Company Y that the content actually does infringe their copyright. For example, in the case described in the article, Casio (Company X) would present to Github (Company Y) the actual source code for their calculator, along with the evidence of how and when it was developed, and the details of the comparison of their source code with the content posted in the Github repository, showing why the latter must have been copied from the former.

Step 4A: Company Y looks at the evidence presented by Company X and decides it is legitimate. They send a notice to the person who posted the content saying that they have good reason to believe it infringes Company X's copyright, hence, pursuant to the contractual agreement already in place, the content is being taken down. Then, if the person who posted the content really is legitimate, they have to sue (but if they really were posting infringing content, nothing further happens since they know they won't win a lawsuit).

Step 4B: Company Y looks at the evidence presented by Company X and decides Company X is bluffing; they don't really have a valid claim but for some reason they are trying to get Company Y to comply. They tell Company X they do not believe the content is infringing. Then, if Company X really has a valid claim, they have to sue (but if they really were bluffing, nothing further happens since they know they won't win a lawsuit).

So the only possibilities for a lawsuit are in Steps 4A (if the person who posted the content really was legitimate and decides to sue) or 4B (if Company X really has a valid claim and takes it to court). But if either side really has a clearly valid claim (and at most one side can--either the content really is infringing or it isn't), the process is far, far more likely to stop at Step 2 or possibly 4B (if the person posting the content really is legitimate and the infringement claim is bogus) or Step 4A (if Company X really has a valid infringement claim and the person posting the content was bogus). The only cases that will make it to court will be the doubtful ones: for example, Company X really believes the content was infringing, but their method for comparing the source code is flawed and they don't realize it, and the person who posted the code really did independently invent it. Or the person who posted the content really believes the content was, say, fair use, but Company X thinks differently.

> I'd prefer if the latter category simply got a DMCA notice and went away, rather than having to go to court.

In my scenario, inadvertent infringers would stop at Step 4A. The difference between my scenario above and a DMCA notice is that, instead of just the bare assertion of infringement (Step 1 in my scenario), Company X now has to provide the actual evidence showing why the posted content is infringing. And Company Y has to judge that evidence. For inadvertent infringers, that does mean more work for both Company X and Company Y; but inadvertent infringement is precisely the case where you want some more work to be done to check the claim, because the person who posted the content is acting in good faith, so it's worth taking some more time to make sure they actually made a mistake.

By contrast, consider the scenario the DMCA is supposed to protect against, of a purposeful infringer, who just wants to post copies of videos of popular songs, for example, to boost their own YouTube following. First of all, this person now has to swear under penalty of perjury that the content they are posting does not violate anyone else's copyright, instead of just agreeing to a contract, so some percentage of people who would have been purposeful infringers in our current regime won't bother. Second, it won't take long for a company who owns copyrights to videos this person is posting copies of to get to Step 4A in my process above, at which point the videos get taken down. If it were just one video, the person might be able to convince YouTube that it was a mistake; but if they're really engaged in purposeful infringement, a single company could probably present, at once, a fairly large number of videos all of which were infringing, and all of which would get to Step 4A above. And at that point, YouTube simply shuts down that person's account. And once word gets around that that's how YouTube deals with purposeful infringers, the purposeful infringers realize that there is no value to be gained from doing it and stop. But again, Company X was forced to provide the evidence that yes, this really is a purposeful infringer, before the content gets taken down. They can't just assert it.

My scenario also means less work (no going to court) for the cases where Company X doesn't have a valid claim but is simply trying to bully. In fact, under my scenario, there is little to no expected gain from bullying at all, so companies would stop doing it, whereas under the DMCA, bullying is encouraged. And from what I can see, much if not most of the actual DMCA claims that companies are filing are bullying, not actual stopping of purposeful infringers.

In step 4, what would the legal standard be for company Y's analysis of the evidence they were provided? Would company X have a claim against company Y, if they rejected evidence and company X still feels they're right?

> In step 4, what would the legal standard be for company Y's analysis of the evidence they were provided?

It's not a matter of "legal standard" for company Y's analysis in itself. It's a matter of what Company Y would be willing to defend in court if it came to that. The right person to answer that question is not me, but Company Y's executives, in consultation with Company Y's corporate counsel. That's what they get paid for.

> Would company X have a claim against company Y, if they rejected evidence and company X still feels they're right?

I already covered this case in my Step 4B: Company X sues Company Y for hosting content that infringes their copyright.

I think this would be extremely unlikely given what would have to have already happened before the case got to this point. Remember that both side's lawyers by this time have looked at all the evidence that would end up being presented in a trial, so both sides know what they're up against.

>already covered

You weren't clear on who is being sued.

So, if you don't give company Y a safe harbor, then many such company Ys will simply remove content whenever they receive a complaint. It's cheaper, after all, and the users can't complain, since the contract will specify that.

We're back to widespread abuse, except without the ability of the uploader to file a counternotice.

> if you don't give company Y a safe harbor, then many such company Ys will simply remove content whenever they receive a complaint.

From what I can gather, many users would have no problem with that at all. At least one has posted in this discussion saying so explicitly. The DMCA is irrelevant for such users.

To the extent there's an issue here at all, it's balancing between companies that have legitimate claims against purposeful infringers, and people who post content they legitimately own (or which is legitimate fair use or some other exception) that are targeted, mistakenly or with intent to bully, by companies.

The DMCA arguably deters purposeful infringers, since it greatly decreases the cost to copyright owners of getting the infringing content removed and increases the cost of getting removed content reinstated.

However, the DMCA also greatly enables mistaken or bullying claims against legitimate content, for the exact same reasons: it greatly decreases the cost of having content removed and increases the cost of getting it reinstated.

If the first category is much larger than the second, the DMCA might be a reasonable tradeoff (putting aside the other issues I've raised about misuse of the law).

If the second category is much larger than the first (which is what I suspect), the DMCA does not look to me like a reasonable tradeoff at all.

The DMCA is relevant because it gives such companies a safe harbor to initially host such content. You would require they get a signed and notarized affidavit prior to granting this safe harbor.

I think we can fix the trade-off by increasing penalties for abuse, as this discussion originally opened with such proposals. I'm not convinced abuse is so inevitable that we should ditch the whole framework.

> 3. This needs to be a ratio. If thousands of complaints are valid, it should require more than 3 mistaken ones.

Perverse incentive: Pad your notice ratio by hiring infringers-as-a-service combined with immediate takedown.

The requirement to reimburse costs and time for false takedown is a much better approach because it also punishes drawing out the process. The longer it takes the more costly it gets.

You already need to pay costs for false notices under 512(f). It's just hard to enforce.

4. If a DMCA counter-claim is made, rather than provide the contact information to the claimant, the hosting provider shall retain the information and provide it directly to a court only if a lawsuit is actually brought.

If you don't like copyright or the DMCA, just say so. Making the risk of an action intended to be less heavyweight than formal legal proceedings so high that even legitimate rightsholders daren't try to enforce their rights is just blatant bias.

Yes, DMCA-style takedown notices are used excessively by some actors, and yes there should be consequences for that, perhaps along the lines of losing the privilege for a period of time if their ratio of successful cases falls below a certain level.

However, given how bad certain major hosting sites already are at responding to legitimate DMCA takedowns or their international counterparts from small rightsholders (been there, done that), the changes you propose would stack the deck even further towards the people who wilfully infringe and then straight-up lie about it in their counter-notices.

Ultimately, unless you have the means and funding to bring a serious legal action internationally, these takedown laws have limited value anyway, but at least they don't actively act against the true rightsholder in cases of flagrant abuse.

I think your suggestions focus too much on monetary repercussions. For businesses this turns into a continuous cost benefit analysis, and the larger the business the larger potential benefit of abusing DMCA claims - it's possible to attempt to balance this with charges relative to the size of the business, but this is still just dancing around a threshold.

I think more rights should be on the line, this is more of a qualitative loss on both sides of the equation which is harder to weight in terms of cost benefit... if you abuse rights, you should loose rights, and that goes for business entities too, the larger the company the more to lose, but the more resources they have, so it forces them to be accurate.Your #3rd suggestion is such a right, but doesn't cut it for this example of abuse where the "copyright holder" doesn't hold any relevant copyright... to cover these cases where DMCA is completely inapplicable we need loss of rights at the individual and entity level rather than works, e.g:

1. Risk of loss of the right for the _business_ entity to make _any_ future DMCA complaints against the defendant.

i.e The defendant would be legally allowed to infringe on the businesses copyrighted works in _future_ if they desired. This is a really good deterrent of missuse because it causes claims to cut both ways - you don't need money and lawyers to make things backfire, it's automatic.

2. Loss of right to the individual making the complaint.

Individuals submitting these complaints should take some degree of responsibility, if they are knowingly perjuring themselves then they should lose their personal rights to submit DMCAs for any business - this pushes them back towards individualized thinking rather than hiding behind the demands of their superiors.

To simply enforce either of these without some kind of centralised bar, once an entity has been banned a second strike could automatically become a criminal act.

>1. Forbid delegation of enforcement to third parties. If you’re the copyright holder, you or your actual attorney may be the only ones to file a complaint. The copyright holder is solely responsible for such DMCA complaints.

if i remember correctly several years ago a copyright troll case was shot down by the judge on the grounds that [IANAL] the copyright law doesn't have the "right to sue" which the troll had supposedly bought from the copyright holder, and the ruling was something like that the troll doesn't have standing and the actual copyright holder should be the plaintiff.

Under the current dmca invalid complaints are actually serious (purgery?) but it’s never enforced.

Most of the issues really come from Google’s pathological behavior with YouTube.

Just repeal the thing. The only good part of the DMCA was the safe harbor provision; everything else should just be thrown out as irreparably bad.

Both DMCA notices and counternotices are technically just safe harbors. The whole structure comes from carefully defining a safe harbor that everyone would want without requiring anyone to actually abide by the rules.

Reply on news.ycombinator.com