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Comment by drivebyacct2 | Hacker News Reader

That's the point of the suit. The DMCA leaves you open to penalty if you submit false claims.

I looked around for costs; basically the original copyright holder has to prove damages. Since most people using Youtube, et al, are not making that much profit, the DMCA-issuers won't face significant penalties for misusing DMCAs.

Seems like I won't get much penalties for taking down the trailers because it's hard to prove damages.

http://www.hyperorg.com/blogger/2010/02/27/the-economics-of-...

http://www.techdirt.com/articles/20100302/0432448359.shtml

"Hard to prove damages" hasn't stopped the RIAA and Sony from claiming $750 per song and winning.

They have statutory damages for that, so they do not need to prove actual damages most of the time. I say "most of the time" because I think there are a few cases where statutory damages can become unavailable. I don't remember the details, but I think I heard once that someone mucked up registering their copyright and was unable to claim statutory damages because of that.

> Since most people using Youtube, et al, are not making that much profit, the DMCA-issuers won't face significant penalties for misusing DMCAs.

Issuing a false DMCA takedown is perjury, and the victims may have standing for a Racketeer Influenced and Corrupt Organizations civil lawsuit with substantial damages.

And those penalties are based on the cost to the other guy. So if warner falsely demands your youtube video is taken down - you lost no money so even if they lied the penalty is zero.

If you request a Warner file to be removed they will prove that they lost $billion dollars. After all, an industry that claims star wars made a loss can prove anything.

> And those penalties are based on the cost to the other guy. So if warner falsely demands your youtube video is taken down - you lost no money so even if they lied the penalty is zero.

DMCA notices include the required text "under penalty of perjury". Perjury qualifies as a criminal felony, quite aside from any financial penalties. Unfortunately, nobody has ever enforced that requirement; someone ought to. Perhaps with the parties responsible for sending such notice imprisoned for up to five years (http://www.law.cornell.edu/uscode/18/1621.html), they'd think twice about sending false takedown notices.

I read once that the 'under penalty of perjury' was 'linked' to the statement that you were an authorised representative of the company making the claim, not 'linked' to the claim itself.

Having said that, it's been a long time since I've seen a notice :)

There is a similar clause in patent applications but I have never heard of a defeated patent involving a prosecution for perjury!

I suspect the burden of proving that it was a deliberate lie to damage the other guy , in a criminal trial, is rather too high.

It specifically says "I swear, under penalty of perjury, that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

So, if you're not the copyright owner...

See that's the thing: I read that as "I'm saying that Product X is being infringed and I swear that I am authorised to act on behalf of the owner of Product X".

It is not saying that "I swear, under penalty of perjury, that that the product I claim is being infringed actually is being infringed".

That's a pretty important difference I think.

Fair enough. Do you have any reference to indicate that as the intended reading?

I don't unfortunately. The discussion I read was so long ago that it was probably on Slashdot :) Having said that, I found a few sites with 'DMCA policies' (eg. http://www.azlyrics.com/copyright.html ). Looking at how they discuss perjury, as well as just reading that line that you quoted nothing mentions that you are claiming the infringement under perjury, just that you are allowed to represent the product that is allegedly being infringed.

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