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Comment by jorams | Hacker News Reader

I think it makes more sense to disqualify abusers from the entire takedown system. The DMCA takedown process takes a guilty-until-proven-otherwise approach, and companies like Markscan from the article can clearly not be trusted with that power. After maybe 3 false takedowns the receiver should be allowed to assume anything they send is bullshit.

There should also be consequences for copyright owners choosing to be represented by a large number of such abusers, but that's a lot more complicated and would require more due process.

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Abusers of DMCA should just have the IP in question automatically reclassified as Public Domain. Problem solved.

This may sound extreme (and it kind of is), but companies send bogus legal threats under penalty of perjury and it's time to put the "magic of incentives" at work here. IP protection is not a constitutional right. You abuse it you lose it.

That's what I had in mind as the consequences in the last paragraph. I'm not sure what the process for that reclassification would look like. I think it does need some level of actual confirmation that the copyright owner is responsible for the abuse, while ignoring of abusers by a platform is easy and decentralized.

Do the "abusers" tend to be the actual owners though? If not, there's no actual IP to take away from them.

If not implemented carefully, this could incentivize shell games.

Also I could totally seeing this getting abused with competitors posting fake DMCA for one’s content to get their competition public domained.

That seems like you’d be committing perjury, which the victim could prove easily by showing there’s no authorization.

Does matter whether the abusers are the owners themselves or merely representative agents of that the owners have hired?

I don't think that it does.

Per the definition, yes. A DMCA notice submitted by someone other than the copyright owner or someone acting on their behalf is invalid.

If you submit a DMCA notice without authorization, then it’s perjury.

If you submit one with authorization, then the authorizing party should put their IP as collateral.

Some penalty is clearly appropriate, but IP protection is part of the constitution.

Do you have a source for that? I don't see anything in the US constitution being remotely close to Intellectual Property protection. It does have several protection on property, but I'm pretty sure it's talking about the physical kind.

Article I, Section 8, Clause 8:

> “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

https://constitution.congress.gov/browse/article-1/section-8...

That is a power granted to congress, not a constitutional right.

That is, the constitution grants Congress the authority to create a legislative IP right. It does not create a constitutional IP right.

You can tell, because Congress could say: “stuff it, no IP rights for anyone. Copyright no longer exists for new works”, and that would be constitutional.

People interpret the constitution in different ways, but this is commonly interpreted as a requirement not just a power. Critically, this stuff is interpreted by the Supreme Court not simply anyone so someone could bring a case should congress fail to provide any protection.

Thus congress could specify that copyright only lasts for 1 month, but they can’t just ignore it or set it to 1 second without the courts getting involved.

If the legislature wanted to protect IP differently, it is at their prerogative though.

For instance, if they think the value of IP to promoting the arts and sciences is reduced significantly by IP claimants committing perjury and abusing other people's freedom of expression, and that the situation needs a remedy.

There's nothing saying it has to be this way, merely that granting rights is a thing that can be done. Y'all can find this section of the constitution I'm sure, and it's dull but short! This is super up to the legislature, otherwise how would they have passed the DMCA in the first place? Of course they could make a law to revoke IP for any kind of thing they decide they need to -- like for national security:

"The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Why do copyright holders get due process but not accused infringers?

Because they are not being prosecuted for a crime, and are not being subject to legal penalties. They are not facing jail time or a legal judgement. The platform just takes them down.

I’m not saying this is right, just that this is the reason.

False. A takedown can be very costly in terms of lost income for the victim of the false takedown. It is a legally prescribed process.

Imagine if you could DMCA-strike a toilet - your toilet is pirated and is being dismantled immediately.

Must. Not. Make. Joke. About. Situation.

I didn't say it wouldn't be costly - I'm sure in many cases it is. But it is not a legal process - the platform just removes your content. Just because a law requires platforms to do something, does not mean this is a legal process or proceeding.

Just like if a law requires business to enforce mask-wearing, and then I get kicked out for not wearing a mask, that was not a legal proceeding. They just kicked me out.

The ultimate answer is because copyright holders have money and spent a fare bit of it on lobbyists.

Copyright holders are organized, e.g. MPAA/RIAA, and motivated (money moves ya). Content consumers are disorganized and little motivated.

The party receiving the notice would have to be able to verify that the filing party actually exists and is in fact filing the notice.

If the purpose of filing the notice was griefing I can create firstname.lastname@freeemailprovider.tld email accounts by the dozen and start sending.

Your proposal only helps with lazy automated notices / ones that are sent by companies aggressive and/or incompetent beyond reason.

I'd rather have statutory damages somewhere in 5 digits range for filing obviously ridiculous notice, just like there is one for copyright violations.

>I think it makes more sense to disqualify abusers from the entire takedown system.

The problem with this idea is that there is no "system" you literally just send an email/letter/whatever claiming that you're the rightsholder.

Well, it starts via such a notice. You can just as easily send a counter notice. The actual violation process occurs in the courts though and that means you could never actually do anything anymore even if you were spamming out notices without getting caught.

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