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Comment by Eddy_Viscosity2 | Hacker News Reader

Wouldn't it be great if, for every false copyright claim, the person/entity making the claim received strikes and had to compensate the person subjected to the false claim? Make abusing the system costly? Attempt to compensate victims of the copyright claim system abuse? Maybe?

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> Attempt to compensate victims of the copyright claim system abuse? Maybe?

It is called following the law! DMCA Section 512(f) basically says that if you issue a false claim, you are liable for all damage you caused, including attorney fees.

I don't know what lawyers have to say, but it looks like easy money for a law firm if DMCA false claims are so common and so obvious.

> (f)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.

512f is currently unenforced by the courts. Judges are not state machines, it matters not what the technically correct decision may be, they are not required to make it.

https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.

> 512f is currently unenforced by the courts.

It's not unenforced. It's just that there are basically no counterclaims because they're not worth doing.

> It's not unenforced. It's just that there are basically no counterclaims because they're not worth doing.

Right, they're not worth doing because the cost of doing them won't be reimbursed.

Unsure if you read the above link for the other court case, but moving in a different direction. There have been plenty of DMCA requests for 127.0.0.1 [1], there is no argument that those are in good faith. It would be easy money to get reimbursement for dealing with them but you won't because the courts do not have to give you it.

[1]: https://www.google.com/search?q=DMCA+request+for+127.0.0.1&o...

Reminder that the normal YouTube copyright process isn't the DMCA process, but instead a process YouTube came up with as part of a settlement with the record labels that gives those making the claim nearly all of the power.

The youtube TOS does not shield people making false claims from liability. It is extremely lopsided in every other aspect, though.

But the DMCA section about liability for false claims doesn't apply if it wasn't a DMCA takedown in the first place.

There are other actionable laws that could potentially be used here though. Slander of Title [1] certainly seems to apply here, given that the claims disparage ownership, and could be argue to have caused damages, through things like unwanted ads being played before and during the videos.

[1] https://en.wikipedia.org/wiki/Slander_of_title

Which doesn't come with attorney's fees by default. So if they screwed you out of, say, $10k, it might not even be worth it to go after if there's a large disparity between your resources and theirs.

You don't need the DMCA to be able to sue someone, this is just tort law.

No, the section where you agree to binding arbitration does.

YouTube circumvents the DMCA with a custom process, which is why fraud is so rampant - they intentionally designed a system to enable fraud (at the behest of media companies)

I have chatted informally with probably half a dozen "big law" lawyers about the current state of rampant DMCA abuse, though none of them specialized in trademark/copyright. The initial reaction i got was that there wouldn't be enough money in it. The other reaction i got was basically "who cares?" Those aren't really the right people to ask, but that was my experience for what it's worth. To be fair those attorneys were probably far too expensive for anyone involved in a DMCA dispute to use, but personally if i had an airtight case i would want those types of firms to be running up the bill.

But we don't see people getting money from false DMCA claims. We wouldn't be having this conversation if we did.

I believe the keyword though is "knowingly" which is really hard to prove

I would guess that using a system that is known to produce false positives without second checking (as evidenced by the obvious mistakes) counts as "knowingly". But again I am not a lawyer.

This system was setup to make the DMCA easy for copyright holders. There's zero consideration about whose holding.

Before YouTube, I was getting takedown notices from Qwest internet and when I wrote them demanding proof, they ignored me and just flipped the switch back on.

Eventually they just automated the takedown system so you had to go through some isolated dcma system.

They have no cares about consumers because consumers present zero legal threat.

And remember that YouTube’s system is not DMCA. DMCA rules do not apply nor do any protections. The YouTube system is designed to favor copyright holders and those who claim copyright.

Even $50 would probably be decent compensation for most YouTubers. It would probably reign in false claims dramatically, and reduce the numbers of appeals enough that real humans can check each one.

Yeah probably, but wouldn’t really be sufficiently punitive to really deal with the problem. It should be a % of the abuser’s revenue

If a claimant makes a bad-faith claim or the claim is done by undersupervised automation? Sure. But I think some of these claims are false positives by YouTube's ContentID system. In those cases, does YouTube pay? I agree there needs to be a disincentive to over-claiming (including but not limited to holding ad revenue in escrow and returning it to the video's owner if the claims are false) but in practice, I don't know how it needs to work.

If its an automated system, then yes I think youtube should have to compensate users when the system youtube created, screws over an innocent user. If the government, who is almost as powerful as google, similarly created a system where they falsely arrest huge swaths of innocent people, then they too should have to compensate their victims. The goal here is to get youtube to do better, and the only way to do that is economics.

This would only work if a successful claim resulted in the YouTuber having to pay, otherwise such an asymmetric situation would never be sustainable.

Given how many popular videos sit on the edge of copyright abuse it’s not really in Google’s interest to do this anyway.

I would agree with this. It should work both ways. There may be a few edge cases where it really wasn't clear if it was or was not copyright infringement; both cases were reasonable. These would be the exception where neither party may be fined.

And how do you figure out what these cases are without spending $2 million in court fees each time?

This is how the DMCA, as written, is supposed to work.

Step 1: Alice uploads some media to Bob's website

Step 2: Charlie decides Alice's upload violates his copyright

Step 3: Charlie sends Bob a DMCA takedown notice.

Step 4: Bob takes down Alice's media, issues Alice a notice that he's received a claim, and is now protected from being sued by Charlie.

Step 5: Alice disagrees that her upload violates Charlie's copyright, and issues a counter-claim to Bob.

Step 6: Bob reinstates Alice's upload, notifies Charlie that Alice has contested his claim, and is now protected from being sued by Alice.

Step 7: Charlie sues Alice, because he still believes the content to be in violation of his copyright, or gives up

Step 8: Court case / counter suit decides damages between Charlie and Alice

The problem is not the DMCA system, which if anything is too generous to the media host. The problem is YouTube's added bullshit layer, which goes something like "Charlie hints that he might send a DMCA takedown, Bob takes down Alice's video and threatens to ban her from the platform"

Given how the DMCA works and the liability involved, why would it work any differently?

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