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Comment by c2h5oh | Hacker News Reader

Actually no. DMCA is super one sided.

All you need for DMCA takedown notice is "a good faith belief" that reported content is infringing copyright you own (or is owned by someone you represent).

The opposing party has to prove that the claim was knowingly false and malicious for the claimant to be charged with perjury.

The opposing party has to prove actual damages in court to get any compensation. You may get legal fees back too (up to the court), but that's only likely to happen if it's obvious at the first glance that the claim was bogus.

This is all you can do to someone filing the notice. Notice doesn't even establish a jurisdiction (and cease-and-desist letter does) - so you can't counter-sue in your jurisdiction to get declaratory judgment that copyright is invalid.

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Right. The DMCA was written with the advice of the copyright holders' lawyers (and by them in some cases) and activists and others fought against it as hard as they could.

Even in 1998, the US government was corrupted by money. It's worse today, but this has been happening a long time.

I suspect one could make a case, given the history of the MPA/MPAA that they've left both the realm of "good faith" and "belief" long ago. Each incident doesn't get to occur in a vacuum. You can't claim blissful ignorance forever.

Could GitHub mount a case on this - that they (MPA) have been making so many of these these bogus 'good faith belief' requests over time that those words don't actually have any meaning anymore to them, and as such have been lying through their teeth when making them now?

That would make it interesting...

Is there a history of bad faith claims in the courts? I suspect there isn't or at best very limited. It goes like this:

1. MPA sends a notice, content is taken down/disabled

2a) No response to takedown notice is sent, because the next step MPA can take after that is to take you to court. If you win the best case scenario is you recover your legal costs (but not the time). Content stays down.

2b) A response to takedown notice is sent, content gets restored. MPA doesn't go to court, unless it's a slam dunk case or it's important enough to bully someone into submission with legal costs (you pay those out of your pocket with hope of maybe getting most of it back at some point, possibly years later). Victim doesn't go to court for compensation, because it's almost certain that even with a resounding win what they recover is going to be less than legal fees.

The actual number of cases that see the courtroom is likely very, very small.

IANAL but best I can tell it is with regards to filing the takedown notice rather than taking them to court. If it is just the sending of a takedown notice, then holy fuck have they abused it.

Oh, most certainly they have abused it, no question about that.

The problem is if either side folded at notice / notice response step, then that abuse is visible only to platforms that receive those notices, not to the courts.

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