I wish, just once, that someone who sends bogus DMCA claims like this would actually get sent to jail for committing perjury.
If I claim to be Disney and issue a DMCA takedown of somebody's video, that's perjury, because Disney did not authorize me to do that.
If Disney's lawyers claim your video about how much you enjoy yoga is infringing on their animated feature film "Snow White" that's not perjury even though the claim is wrong and the worst that'll happen is if it went to court it gets dismissed and maybe a Disney lawyer gets slapped on the wrist for wasting a judge's time with this nonsense.
DMCA claims aren’t made to a court, so perjury doesn’t make sense. If one could prove intent, perhaps fraud?
I wonder if wire-fraud applies because IIRC the DMCA claimant gets the video's ad revenue. You have an aspect of obtaining money, it happens over the wire, so...maybe?
YouTube built its own parallel claims system that does claim revenue, though they did recently change it to hold revenue in escrow while a dispute is processed. The implicit goal of this system is to take as many claims as possible out of the DMCA 512 system and into YouTube's hands, where they can then negotiate a different monetization agreement behind the uploader's back.
It's important to note that the video stays online instead of being removed as required under DMCA 512. This is of little consolation to the creator, of course, if they were looking to monetize the video.
The fact this provision is not regularly enforced is because it would be expensive to do so, often exceeding the damages in the first place. However I wish EFF and other organizations would start pushing back against companies like this using 512 (f) and get some case law and actual damages including legal fees against these copyright abusers
It should also support misconduct filings with the Bar for the attorneys that filed the requests.
This actually can be flipped on YouTubers' heads, too. If you counter-notify something that you know is infringing, you can be sued for 512(f) misrepresentation. So, say if you use a song in your video you don't own, you get DMCA'd, and you counternotify to get your video back up; you can now be countersued.
But even if you do have a genuine 512(f) case, you have another problem: it is not worth your while in order to sue. For regular copyright cases, you have a thing called statutory damages, which can go up to $150,000 per infringement if the infringer was "willful" (i.e. they basically said 'fuck you'). This is in contrast to "actual damages", which is where you prove to a judge that you lost $X or that the infringer gained $Y. It's extremely difficult to prove[0] actual damages, which is why we have statutory damages. Because without the guarantee of a large damage award, even an open-and-shut case against a wealthy target becomes uneconomic to prosecute.
In 512(f) claims, you only get actual damages plus fee shifting[1]. At least you can hope to recoup costs... except that that's not how fee shifting works. You don't just send the defendant your attorney's bill. The judge goes through that bill, picks out the "lodestar amount" to shift to the defendant, and you pay the rest.
Oh, and all of that is assuming that both you and your defendant are financially solvent, properly capitalized entities that can pay things. You can't sue a homeless man[2].
[0] You know the whole "lost sale argument", and how we love to poke holes in it? Yeah...
[1] Which, BTW, is also so un-American a concept that lawyers literally call it the French Rule. Or the British Rule. Either way, in most other countries the loser pays the winner's attorney's fees. In the US you only get fee shifting in copyright cases.
[2] Which, if you believe James Gosling, is the reason why he didn't completely kill GNU Emacs.
Also, you totally can sue a homeless man. It's just that you can't afford to.
Noting for purpose of precision that the ad revenue instead of takedown for copyright claimants thing is a Youtube policy unrelated to the DMCA rules, yes, the fact that the false claimant gets paid when Youtube accepts the claim, and is aware of this, makes it quite possible for such a claim to be a “scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises” within the scope of the prohibition of the federal wire fraud statute, 18 USC § 1343, the way a DMCA claim to a provider not offering such compensation to the claimant would not be.
For an organization beyond a single entity doing this as a pattern, this also potentially has civil and criminal RICO implications, as wire fraud is a RICO predicate offense.
(Not a lawyer, not your lawyer, and if I was either of those things I wouldn’t be giving you legal advice via public comments on HN.)
> A statement that the information in the notification is accurate, and under penalty of *perjury*, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed.
Though this may not refer to the falsehood here. See stackexchange (where I copy/pasted the above from): https://law.stackexchange.com/questions/51541/has-anyone-bee...
(It may be somewhat difficult to argue that the use of signage as specified in the contract and provided for this very purpose by the claimant should be infringing.)
[Disclaimer: not a lawyer]