DMCA is such an epically shitty law. Only worse is that other countries are happily copying the law too.
Platformists say that this is necessary because transparency will allow bad actors to game the system, but their solution to this to make society into an oppressive panopticon; the cure is worse than the disease. Further, the ignore the degree to which the lack of transparency is already weaponized by bad faith actors.
I think the anticircumvention part of the DMCA is what's really shitty, but that's a tangent.
The anti-circumvention provsions are also a trash fire. DRM regimes are some hot consumer-hostile bullshit that have no (legal) alternative because the law is behind them and heavily weighted towards the needs and wants of major IP holders. Modern US copyright law is designed primarily to maximize profits and enforcement mechanisms for entrenched interests with little regard for anything that isn't, idk, Beyonce tier of actually needing that much licensing cruft.
There's some joke somewhere about ours being the first few generations to systematically deny ourselves access to our own culture because biglaw is more than happy to cut off its cultural nose to spite its face so long as the money train keeps flowing for the few elites that really benefit from the current system. We have a walled garden that will likely never fall because life is peachy if you're inside the garden already, and anyone outside can't compete with the financial and lobbying muscle of those inside it without operating in legal gray areas at best.
For a large production like a film, that may mean splitting the rights up fractionally to thousands of different people. This would prevent the kind of unilateral rent seeking that squashes artistic creativity - getting a thousand regular actual artists and normal people to agree to sue a harmless fan project is much less likely than an executive suite.
Them's the rules. Don't hate the player, hate the game.
At some point you have to realize the players are dictating the game, and then yeah, hate them.
The legislation is bad, because it neither accounts for normal actors that generally would always follow the passive path of least resistance, nor for bad actors that would actively try to abuse the system.
This is basically being upset over the effects of a natural law. You don't blame rocket for exploding, you blame the idiots who designed it that way. And you definitely don't blame the launchpad operators for poor rocket design - that's not even their job.
Law is not objective ideology sitting in context-free space. Law is ideology applied, and that very application made explicit. A law defines the very context it exists in.
So we can't just objectively ignore the failure of a law being applied, because a better application of that law must be defined in that law.
Even if a law defines a reasonable ideological mapping (expected behavior), it still needs to define a reasonable application of that mapping.
If, in practice, we see a law being abused, then the solution must be to change that law such that it isn't abusable anymore.
DMCA is an extreme failure, not in defining expected behavior per se, but in defining the domain for implementing behavior. The way DMCA is put into practice circumvents the very ideological behaviors it defined as its expectations, in nearly every case it is applied to.
A version of DMCA that "isn't shitty" would be incapable of such overt and widespread abuse. Clearly the version we have does not meet that criteria.
If the law enables said shitty automatic responses, then yes, the law is indeed shitty.
It works extremely well, if you consider who the beneficiaries are (who also happened to write it).
You are own a small forum or site. You get DMCA takedown, you take content down and are safe. Send notification to uploader. They disagree. You can put stuff back up. You are not liable for damages after this. And really shouldn't be expected to fight.
Now it is up to the two other parties to fight it out. This is where the system fails, because whole process is long and expensive. But so is any other legal action. Maybe consider fixing that reality first.
Companies that host content do basically nothing to actually verify that the takedown request is even from a real person (nevermind the original copyright holder).
A better system would be one that allows the uploader to take the takedown issuer to court, and if the takedown request was clearly malicious and bogus then the takedown issuer would get a penalty. This approach would still allow a legitimate takedown request, but not be forced the issuer into taking a contested case to court.
The takedown process is part of, and only relevant to, the safe-harbor provision.
> Companies that host content do basically nothing to actually verify that the takedown request is even from a real person (nevermind the original copyright holder).
Because not complying with a correct-in-form takedown puts them outside of the dafe harbor. The uploader can, of course, challenge the false takedown (and the host can decide they don't care about safe harbor, but they won't in practice, nor will they normally care as much about safe harbor against claims by the uploader, so counternotice compliance may be less enthusiastic than takedown compliance.)
> A better system would be one that allows the uploader to take the takedown issuer to court
You can do this. A false takedown is false, damaging statement of fact and actionable as such, it may also be actionable as tortious interference, and a number of other things.
Yes, I'm aware - I'm saying that the fact that the law allows truly unvetted takedown requests is silly - there should be some method to disincentivize dodgy takedowns.
> You can do this ...
Realistically it's extremely difficult for this to occur, and the costs often are extremely high (relative to the returns).
Exactly what you say should be available is in the status quo. What is it that you want that is different?
Schemes (including those pre-existing under the common law, as was the case for defamation) giving strict liability for false statements have generally been found to conflict with the First Amendment, and in any case, I’ve literally never heard anyone suggest that the main, or even a major, problem with the DMCA safe harbor was too many takedown notices made with reasonable, good-faith belief in their accuracy that were nonetheless wrong.
So, to me, this seems like an probably-unconstitutional solution to a non-problem.
I have seen the subject come up regarding organizations that carelessly bulk-send DMCA notices based on quick searches for possibly infringing material with little, or sometimes any, effort to confirm. Though I suppose that wouldn't be "good faith". But wouldn't that be a negligence standard? The law says "knowing".
> So, to me, this seems like an probably-unconstitutional solution to a non-problem.
As for the constitutional impediment, that may well be the case, but this is not a non-problem. If the DMCA regime shifts all the costs for a false statement (even if not a "knowingly" false statement) to the recipient (and/or their hosting provider), that's a problem. Maybe not a problem worth upending first amendment precedent over, but a problem nevertheless.
Both in terms of real problem and constitutionality I think a negligence standard is more defensible than strict liability.
> If the DMCA regime shifts all the costs for a false statement (even if not a “knowingly” false statement) to the recipient (and/or their hosting provider), that’s a problem.
To be fair, the DMCA doesn’t shift any costs in that direction; in the absence of the DMCA safe harbor provision that the notice/counternotice process is part of, the notice recipient would be exposed to all the same costs as they can be under that regime, and the host would be exposed to additional costs. The safe harbor regime only gives the host an option which, if followed, removes any liability they would otherwise have, first (on the notice side) to the purported copyright owner, and second (on the counternotice side) to the target of the notice.
Which is why counternotice compliance is spottier than notice compliance: hosts are confident that, even before the safe harbor, they have no liability for an unnecessary takedown, so they don’t care about the part of the safe harbor tied to counternotice compliance.
The system is specifically designed to be gamed by claimants.
So the system is not designed to be gamed by claimants. It's designed to give legal protections to hosts of sites. But this is most definitely a carveout to protect sites. Without the law no one would face to liability of hosting user generated content.
You do realize we had a fully functioning internet filled with user-generated content before 1998, right?
Its almost as if providing safe harbor allowed such sites to grow......
Geocities, say, was huge before the DMCA and died after it.
After DMCA when those suits were gone, they raised $$$, became much more valuable, grew, and soon got bought by Yahoo. They went from the 5th most visited to 3rd, even with much more competition. They grew the user base.
The same thing happened to Tripod and Angelfire from that time.
Instead of trying to cherry pick one example, look at all companies before and after. That is the accurate way to see what happened. If you think the safe harbor content protection did not and does not matter, look how hard current companies are pushing to keep Congress from removing such laws.
[1] https://washingtontechnology.com/1996/11/publishers-push-pir...
Given this blatantly incorrect reframing of the DMCA as anything other than being intended to serve the copyright lobby’s interests, it’s hard to believe you’re arguing in good faith.
You could have a law that provides a safe harbor provision but also requires claims to be honest and backed-up to "some" level of confidence.
The law as it stands does appear to have the possibility of the penalty of perjury for intentional misuse, but, apparently, a comma means that apparently this is actually only applicable to a small part of the claim[1], and as far as I know has never done so. I do not know if this is because the law doesn't make definitions clear enough to demonstrate bad-faith in court (including that comma), or the legal system in general simply doesn't care to enforce the law.
[1]: https://law.stackexchange.com/questions/51541/has-anyone-bee...
Could the internet exist in a way that makes the RIAA/MPAA/etc happy without DMCA? Maybe not. But there’s no reason to assume their happiness is a requirement, or even desirable.
It arguably doesn’t actually allow sites very specifically like Youtube to do that, which is why YouTube has a separate and more draconian arrangement with major rights holders, created in response to previous litigation and litigation threats, and is also currently being sued by a variety of rights holders in a suit which hasn’t been easily been barred by the DMCA safe harbor.