Google sues two men who weaponized DMCA notices to crush competition
torrentfreak.com
torrentfreak.com
In additional to the state-level crimes committed by local law enforcement, your claim suggests a number of federal crimes as well.
Lots of people "know" law enforcement that have "committed" multiple "crimes." But when asked what the crimes were, they can't actually articulate any specific acts, or what they do articulate aren't crimes, or they don't have any evidence supporting their claims.
Media outlets love to report on public corruption. It's what gets journalists awards and fame. If they don't believe you, it's not because they're part of some conspiracy, it's because you haven't given them enough evidence to make it worth their while to investigate.
I guarantee I gave them enough evidence. I've got over a decade of courtroom experience litigating cases, I gave them citations to the statutes down to the paragraph with supporting documentation for all claims. I also had signed confessions from two of the officers. Due to litigation over the matters they were pulled into court, but refused to take the stand under oath and sat outside the courtroom. As an alternative they suggested just signing a confession so they could leave. They didn't want to get cross-examined as it could potentially open up a larger can of worms -- if you're hiding a lot of dirty laundry you don't know what questions will come up under examination; you don't know what the lawyer might know and surprise you with.
Two of them did resign, which protected their pensions/benefits. One of the prosecutors made a come-back as a state legislator though, so a win there for him. (On a side note, while I managed to force that prosecutor to admit to perjury and he was investigated for it, after that incident the state bar regulator seems to have given up -- I got a letter from them regarding another prosecutor stating that they no longer investigate misconduct by prosecutors, only by defense attorneys)
refused to take the stand under oath and sat outside the courtroom
Witnesses that have been ordered to appear in court don't get to decide not to take the stand. (https://www.shouselaw.com/ca/blog/criminal-defense/what-happ...)
you don't know what the lawyer might know and surprise you with.
??? This seems like a Hollywood-based vision of how trials work. In real life, there are no such surprises at trial because both sides already know what the other side knows; it all comes out in discovery. See, e.g., the Epic v Google trial right now, where all of the "surprise" testimony by the witnesses is actually stuff that both parties learned in discovery months ago. Any dirty laundry should have been investigated during the discovery phase of litigation...any litigator with even a year or two of experience would know that...since the type of dirty laundry that would lead to "signed confessions" would be the kind of dirty laundry that lets you avoid the expense of having to go to trial.
I especially don't believe the part about the letter where the state bar supposedly admitted to only investigating misconduct by prosecutors, since even if that was a policy by any state bar (it's not) it's not something they would ever admit in writing.
At this point, you'd need to name names, because everything sounds like a poorly-written L&O knockoff.
If it's enough of a problem for the platform (and not the victims), they can just pay off their congresspeople to write a law allowing DMCA abuse detection systems.
It's just that Google would lose its liability shield if the claim turned out to be real.
Yes, it's cheaper not to check, but its not required by the DMCA.
If their liability isn't contingent on being provided valid evidence beyond a simple statement, then hosts don't have much of an ability to perform an assessment.
The DMCA (well, the Safe Harbor provision under discussion, the DMCA has lots of other provisions that are irrelevant to the discussion) doesn't require action in the first place, so it necessasrily allows anything before action.
> If their liability isn't contingent on being provided valid evidence beyond a simple statement, then hosts don't have much of an ability to perform an assessment.
The DMCA doesn't create liability in the first place.
The same thing that leads them to make deals with big money copyright-based industries for copyright systems that go far beyond what the DMCA safe harbor requires for situations it covers: the fact that they are deeply and actually aware of the copyright violation they facilitate (putting them outside of the DMCA safe harbor to start with), and rely almost entirely on the fact that that is hard and expensive to prove (which the DMCA negates, but which forces them to go beyond the DMCA for industries for which the cost and expense of proving actual knowledge would otherwise be worthwhile.)
The vast majority of "Copyright claims" on youtube are not DMCA takedowns.
Google doesn't require proof or ask for evidence or anything because they don't give a fuck about the rights of a creator. The entire goal of youtube's copyright programs are about the continuation of youtube as a profitable entity. They do that by purposely making it easy for big rightsholders to get what they want, and in the process have made it easy for strangers to bogus claim things and possibly get advertising revenue for a bit unless the creator has enough clout and access to youtube support reps to get it fixed.
The law binds the out group to profit the in group.
They become liable for copyright infringement if the work in question is actually in violation of copyright.
You’d want to be very sure that a work you were hosting wasn’t in violation of copyright before outright ignoring a DCMA request.
The entire idea of of the DCMA is just massively flawed and biased towards a world where only big publishers and big criminal enterprises exist.
Let's say a judge can review a notice every 5 minutes. 12 an hour, say 100 in a day. Say 20 000 per year. So 50 per million, 50 000 judges per billion requests.
Let's say a judge costs 100k per year. With say another 100k in costs. That's a price tag of 10 billion per year. I'm guessing the real number is likely well over double that.
So your plan to include humans, never mind actual judges who went to law school and so on, is, well a non-starter.
One proposal is that you should need full legal identification to file a takedown claim, and be on the hook for damages and penalties if is malicious. This would solve 99.999 of the problem.
How exactly? Require a government issued ID? What if it's fake? How would you validate that the ID is authentic? Even if it is authentic, how do you ensure that person has proper rights to issue the takedown?
> and be on the hook for damages and penalties if is malicious.
How? They could either not be who they say they are and/or not located in the United States. Like in this exact case, the two defendants are located in Vietnam. There's zero chance they're going to show up, so it'll result in a default judgement that will never be collected on.
The best suggestion I've seen so far is to require an escrow deposit on takedowns that is forfeit on fraudulent/malicious claims. However, this then raises the issue of who would determine that. Also, this deposit could potentially tie up a lot of money of legitimate claimants, becoming a financial burden for them and preventing them from issue further claims (which further adds to that burden).
Honestly, I think both conditions might be met with an already vetted credit card number, which obviously involves an associated identification of a person or company.
When signing up for cloud service providers, I'm always terrified that I'll leave something on and incur a massive bill. Basically, every cloud service move I treat as if I'm walking on eggshells. I'd assume those issuing a DMCA would end up the same way.
There is an infinite list depending on how strict you want to be. They could require government ID. They could require a notary. They could require a court order.
There will always be a balance between ease of takedown for legitimate claimants vs fighting false claims.
Require either US Identity papers or a corporate identity that is registered in the US in order to file a DMCA (or <country here> id/corpid for filing a <country specific> copyright claim)
Furthermore, tweaking the reporting times for DMCA would help: 1. Claim made, soft-takedown immediately (delist but don't remove) 2. Proceed to hard-takedown after 24 hrs if no counterclaim is made. 3. Counterclaim made, reinstate and inform original claimant. 4. Original Claimant can then either sue or obtain a court-ordered injunction. 5. Optionally Claimant can pay a nominal fee for "human decision-making" by Google or a mutually agreeable arbitrator. 6. Respondent has 14 days to file their own nominal fee to move it to arbitration or can proceed to countersue.
No, requiring any party to be damaged based on accusations alone is absurd. Copyright infringement is not a life or death matter. It can wait for a judge to at least look at the matter. And if that is too expensive for society then maybe reconsider copyright instead of externalizing the cost required to maintain the fiction that information can be scarce.
A simple, fixed price minimum damage for inaccurate claims would solve this. No more robo-claims because a forum user mentioned keywords which a poorly written scraper matches to their (brokered) client's intellectual property.
But our profits!
Frankly, we're over-enforcing copyrights, which is why this looks ridiculous. It doesn't make economic sense to try a sane system for most of these complaints because we'd be spending thousands of dollars on court costs to take down a webpage that gets 10 views per day.
There should be a nominal fee to file a DMCA complaint just to prevent wasting everyone's time with enforcement actions against pages that no one cares about. Call it $10 or maybe $50. If the site is causing damages to you, the $10 is worth it, but if they aren't causing the $10 of damage to make it worth filing then nobody else should have to deal with that paperwork either.
Source: 17 USC 512(c)
It's pretty clear at this point which motivator has won Google's favor.
Who wouldn't be pissed off when legitimate content gets taken down, and the platform's response to evidence to the contrary is dumb looks and blank stares?
If you know of a work that is copyrighted and you find this work on a website that is not given the license to the copyright, and you are not the copyright holder but instead the copyright holder is your cousin, you should not have the authority to issue a DMCA takedown noticem, even if you may be aware of who your cousin gave the license to.
Instead, only your cousin should have this authority and the people your cousin assigns.
what the parent comments seem to be saying is:
not perjury: "i own this content (true) and it's available at this unauthorized url (false) and i want it taken down"
perjury: "i own this content (false) and it's available at this unauthorized url (true) and i want it taken down"
but both statements have the same effect of getting the url taken down.
That is a difficult problem to solve if we want to add penalty and responsibility. If the error was done intentionally, we ask this to be considered perjury. Of course, if the error was done unintentionally, then it should not be perjury.
Typically, this would be called a "false filing". False filing (of any document) is not "perjury" in law books. If the filing is done intentionally with error or malice, the false filing rule would/should cover such cases. If it is done negligently, it should be documented in record and held against the DMCA filer in the case of future submissions. If it is done irresponsibly, then there should be a fine/ticket. If it is done with malice, the affected party should sue for damage including punitive damages including but not limited to the loss of copyright work.
Of course, accusations like this need a heavy amount of proof, else it would adversely affect both the copyright holder, the DMCA filer, the producer, and the publisher.
So Google needs to remove the sites first, likely to be legally compliant themselves, hurt the businesses in question, then sue to be able to re-instate the websites that they knew shouldn't have been taken down in the first place?
Google is a harmed party; the false reporterts have engaged in the crime of theft (of services/labor) by false pretenses against Google.
(Its true that that crime was merely instrumental to their goal of harming other businesses, but its a real crime and a real harm to Google.)
They're effectively not allowed to, by the law, that forces them to assume every take down is good, or they end up at legal risk of being liable for the content. DMCA is just fundamentally broken.
> OSP must accommodate and not interfere with "standard technical measures." "Standard technical measures" are defined as measures that copyright owners use to identify or protect copyrighted works, that have been developed pursuant to a broad consensus of copyright owners and service providers
Basically, if somebody claiming to be a copyright owner (even if they aren't) files a claim saying they have copyright over someting (even if they don't) using "standard technical measures", Google "must accommodate and not interfere", meaning they need to take down first and ask questions later.
as this was the mid-late 1990s, both the law and the treaty obligation did not consider the future state of the internet, and it mostly focuses on physical but electronic mediums
distinctive bills to patch the DMCA have largely failed due to general partisan paralysis in Congress for decades now, it simply needs to be a rider in must-pass bills but so far it hasnt been
Also knowing how little the average politician probably knows about this subject I don’t see it changing.
(Some hosts are lax about the end-user side of DMCA safe harbor process, because they have no user-side liability that they feel the need to avoid, and there's no other benefit to them, besides PR, for taking any action after a takedown.)
That's what copyright owners do, in reverse, when providers don't give customer information (which they generally don't.)
Theoretically.
[https://leginfo.legislature.ca.gov/faces/codes_displayText.x...]
It’s also explicitly listed as a deportable offense for Green Card holders.
It's only perjury if you're don't have legal authority to act on behalf of the company issuing the DMCA takedown.
In other words, Sony falsely claiming to have ownership over something is not perjury. Some random person claiming to be working for Sony when they don't and claiming ownership and sending a DMCA takedown is.
Partially because lawyers are so good at weaseling out of it, but secretly I think it’s because lawyers are afraid of what would happen if it was consistently applied.
For Family court in particular, I imagine it could turn 1/4 of the state into felons.
The only cases I’m aware of were very high profile, ‘successful’ (as in folks believed it, and took action based on it) lies under oath with severe and high profile damages, that later evidence clearly showed was done in bad faith.
And by severe and high profile damages, I don’t mean something as simple as a single (non famous) person being dead when they didn’t have to be, unless it’s a huge scandal anyway.
Occasionally the system works, though. I remember one suspect I knew defending himself against what he said were totally bogus domestic violence charges. The woman came and testified against him and he lost. A week after the trial, and before his sentencing, his lawyer came and told him the government had just disclosed that they had discovered the complainant had three separate perjury convictions in three other states for being caught lying in domestic violence testimony.
The other issue is that, if I recall correctly, the perjury penalty is not about whether the claim is accurate. It’s about whether you actually represent the rights holder of the content you claim is being infringed.
That is, if I make a DMCA claim that says this video infringes on Frozen, it’s perjury only if I’m not the rights holder (or representative thereof) for Frozen.
The problem is the "_this_" in this thread's example is a full-blown lawsuit by Google. Yes, this is a change from just blindingly obeying DMCA notices but filing lawsuits is not scalable to apply to all the other frivolous and illegitimate takedown requests. These 2 men just did it in high enough volume to attract the attention of Google's lawyers.
An example of all the other illegitimate DMCA takedowns "flying under the radar"...
A few years ago, I was selling some Total Training DVD tutorials of Adobe products on ebay like these: https://www.ebay.com/sch/i.html?_nkw=total+training+adobe+cr...
Ebay then mysteriously cancelled my listing after a few days. Why? Because Ebay has a VeRO (Verified Rights Owners) program and Total Training sent a DMCA takedown request to remove my legitimate listing. I then sent a harsh email with my invoice to Total Training that proved I bought the DVDs directly from them so they are not counterfeit pirate copies and warned them not to interfere when I re-listed it. They didn't takedown my listing so I was finally able to sell it. Total Training wasn't really trying to stop piracy; their real intention was to prevent lower-priced used DVDs from competing with the sales of their new DVDs by intimidating sellers on ebay.
That's the type of small-scale DMCA abuse that happens constantly on Ebay, Youtube, Google search results page, etc. Abuse the DMCA to their advantage but not enough to attract lawsuits.
They picked a small time organization to target, they would not want to upset advertisers, hell I bet they got the blessing of the big media companies to even go after these guys..
If they really wanted side with creators they would push back against their RIAA and MPAA abusers, but of-course they will not
Shame Google doesn't the same with people crushing the competition by adwords/adsense and SEO abuse.
I’m guessing that’s the weak point, but I don’t know how that would work exactly.
After winning a judgment, Google would have to go to court in Vietnam and ask for the judgment be enforced. The court would look at wether proper notice was given, the jurisdiction was proper and that the underlying conduct was something you could sue for. They may also look at the award to determine it isn't excessive. If they're satisfied the court can then issue an order to enforce it.
This all depends heavily on how the Vietnam legal system works, which I have no idea. Obviously every country has their own quirks and processes.
the defendants can be found in
Vietnam from where they proudly
advertise their ‘SEO’ scheme to
others, including via YouTube.
The number of hoops someone has to jump through to launch international investigations is incredibly expensive, both in time and money. It's also a lot of luck and playing hyper-political games like throwing a party for an ambassador. Ask how I know :)
In short, one could hire locals to dish out vigilante justice with virtual impunity.
Oh, I know. There was a guy working remotely in a country that doesn't extradite and embezzled millions. They invited him (and the rest of the company) to a "company party" in the US just to arrest him while giving everyone else in the company free booze for a week.
Wouldn't suing them in Vietnam be appropriate here?
If that's the case Google will be suing half the lawyers in the US, many very powerful.
Either way, decades later looks like they want to put an end to it, when figured out they are spending millions with this BS, not because it was wrong in the first place and was ruining people's business and lives.
Here, the problem has revealed itself: Google is the weapon here, not just DMCA.
How does your own medicine taste, Alphabet?
Tastes like money and lawsuit.
Cherry flavour.
If you pointed out their bogus YouTube copyright strikes problem, that'd be relevant.
But DirectNic doesn't seem like it has anything to do with Google. (?)
For example (and this is just an example): Let's say I put up an expose of bad behavior by a politician two days before an election. Something awful that will get coverage in the media and social media, too. The campaign fake DMCAs it, the content is gone, and the election is won before the content is re-posted after the reply is processed.
There are situations where the notice/counter notice does not work and causes almost irreparable harm.
99% of them either won't accept service on the Complaint or will fail to attend court. Google will win by default judgment on most of the Complaints.
What are those "Does 1-20"? Are they 20 no-name individuals?
Thanks for clearing that up
[edited to remove “used to”]
> Those who knowingly make false statements in a DMCA notice can be held liable for damages, costs, and attorneys’ fees. In this matter the defendants’ conduct is said to have caused Google to suffer economic harm due to lost advertising revenue, damage to business relations, and the allocation of significant resources to investigate their wrongdoing.
Does this apply only to "two vietnamese men" or also companies like sony, nintendo etc., when they happen to forget about the fair uses clauses?
oh those are just innocent omissions and no malice nor intent is implied!
A. Are you going to fight it?
B. Fair use, from a legal perspective, is much narrower than people think and narrower than the wording suggests. A reaction video is not considered sufficient commentary or criticism, for example. Making even a single word change to a cover song, even if you paid the compulsory license fee, is not fair use. Etc.
C. Especially in video games, everyone loves quoting Sega v Accolade or Sony v Bleem as proof emulation is perfectly legal. There’s just one problem: Both of those cases were decided before the mother-of-all-DRM laws, the DMCA, was passed. They are both likely irrelevant cases now. This happens elsewhere too - quoting old cases as proof of legality without other modern developments.
There's no need to prove emulation is legal. There's a need to prove it's illegal. There's a long history of making compatible things. Everything from toner cartridges to PC compatibles to auto parts. And especially in the context of copyright law, explain the possibility of a copyright violation in a piece of software written to emulate a hardware platform when there is no ROM or firmware distributed by the authors? Now how most people choose to run emulators is copyright violation from horizon to horizon, but I don't see how that has anything to do with people making emualtion products.
It specifically has to do with the DRM keys used for decrypting the games; which would appear to run afoul, in most cases, of the DMCA.
It’s also not theoretical. Unauthorized DVD players and ripping software have had their authors legally prosecuted repeatedly (even big companies at the time, like RealPlayer). Gary Bowser also went to prison and had his fines set, in part, for violating that law (notice that it was a criminal case, not a civil one; Nintendo could not have dismissed those charges voluntarily.) Apple sent Psystar into bankruptcy for daring to use their keys to make macOS run on non-Macs as a commercial service. Psystar is actually the best example because they went through the entirety of the legal system to where there was nothing left but appeal to SCOTUS, and they still lost.
I think that the biggest danger to emulation, by far, which archivists should be panicking more about, is the people who emulate to avoid buying a game. Which, according to most estimates, is 90%+ of emulation. On an old console who cares? On the Nintendo Switch though, that’s actual market harm (the lack thereof being one of the pillars of determining fair use in a courtroom).
Wouldn't obtaining a license supercede any claims of fair use? The defense wouldn't be "this falls under fair use", the defense would be "I've licensed this, there can't be any complaint".
https://en.m.wikipedia.org/wiki/Mechanical_license
You might read the above and go, “wait, that wasn’t Fair Use this whole time?” Nope. Fair Use doesn’t cover nearly as much as people think.
Very little in the copyright sphere is "obvious" though. Is this riff original or was it stolen? Etc.
Suing an actual company and recovering some of the judgement would surely send a stronger message.
Edit: maybe a more cynical view is that racking up default judgements is used as low-effort proof of "we're policing the system...see all of our lawsuits" if government or public pressure rises.
Sorta like weev. There are plenty of reasons to not like the guy. But that's the case that made changing the numbers in a URL a possible felony.
Anyway, once they get that first win, they pick on a slightly larger target, and cite the first win as precident.
I'd imagine if they rack up a bunch of no-shows They could change their dmca handling process. We're not honoring these without property X, because these last hundred or thousand or whatever turned out to be fake.
I guess, I'd assert google lawyers are not dumb, and they probably have a reason to start stacking "wins". But I don't know what the strategy or end goal might be. I'm just some random guy on the internet with an opinion.
Who advertises on Google: "two vietnamese men" or “companies like sony, nintendo etc”? Both cost Google money through bogus DMCA filings, but one cohort also brings in a lot of cash.
You can't get sued if you believe something is infringement but the person using the copyrighted material believes it's fair use. Honestly I'm not even sure how that could work.
LeVar Burton? That's a bizarre inclusion on that list. Some Google lawyer is probably a Trekkie.