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Comment by 101008 | Hacker News Reader

The system is broken and I can't see a way to fix it. Maybe pay to send a takedown notice?

Fraudulent claims — those in which the filer knew or should have known that they did not hold any copyright being infringed upon nor were they duly authorized to act on behalf of another party whose copyright was being infringed upon — should be treated as such, with exposure to civil and criminal penalties for the individuals involved as well as their employer.

Platforms should only accept takedown requests through channels in which a person has credibly identified themselves so that they can be held accountable in this way.

No, just enforce the DMCA. Youtube has setup this fake DMCA system where they are acting like they enforcing DMCA but not actually.

DMCA has protection for creators. You can say "Copyright holder is wrong, put my content back up and I'll see them in court." and "They did this maliciously, I'll see them in court."

However, YouTube fake DMCA system is using the provision of "We don't have to host any content we don't want to." so creators are stuck dealing with corporate bureaucracy. Personally, I think YouTube should lose DMCA protection if they want to run this side system.

Is YouTube playing a bit loose with the DMCA's requirements here?

* YouTube has no liability for incorrect take-downs (17 USC § 512 (g) (1))

* That limitation on liability only exists if they restore access to the disabled material within 10-14 business days of receipt of a counter-notice (17 USC § 512 (g) (2) (C))

https://www.law.cornell.edu/uscode/text/17/512

YouTube doesn't have to host any content they don't want to. However, it seems likely that a court would say "that doesn't absolve you of complying with the counter notice provisions of the DMCA. You can't just say that you don't want to host any content that goes through a counter notice." There are always limitations on the whole "we don't have to host things we don't want to." I doubt a court would let them use that as an excuse to ignore an explicit mandate of the DMCA, but IANAL.

I think the problem is more likely that creators don't want to sue YouTube or have the resources to go up against Google.

> You can't just say that you don't want to host any content that goes through a counter notice.

Why not? (at least legally speaking, it'd be a PR disaster I'm sure)

YouTube is not obligated to host any videos on their platform and US law allows for businesses to discriminate for almost any reason (except specific protected classes like race or sex).

They have to comply with DMCA. However, YouTube commonly strikes stuff without DMCA claims or when they get DMCA claim, they remove the video and will not give video owner a chance to counter claim. They will just say "Yea, we got DMCA but now we are exercising our provision to refuse to host anything we don't want to so video is never going back up."

FRAND registry of copyrighted works. The registry would be provably connected to the creator, the royalty rate would be published ahead of time based on use. Infringement could be seen as accidental at first instance and royalty rates charged after discovery. Copyrighted work not registered? Then you are free to attempt your own single distributor network without legal protection, you can always register it some time after you fail. Charge the creator the royalty rate (or some fraction) they define in taxes to the registry so they don't set ridiculously high rates. Could also charge maintenance fees to automatically lower the rates that are so high that nobody wants to distribute at that price, heck the entire copyright limit could just be replaced with some compounding increase in maintenance fees over time. If the work is really successful they may maintain it longer, but unsuccessful works might just become moneypits very quickly.

In this case, the identity of the legal department would be directly connected to the infringing content found in the video which YouTube would have access to to verify. It also wouldn't be a takedown but a royalty demand or they could have registered "Let's play" as not requiring royalties. In principle though, YouTube or even the creator could just do all of this upfront.

That's my idea, in the vein of, "We have the technology to do this better."

DMCA is working exactly as intended: the asymmetry is the house advantage, keeping IP holders in the green and consumers in fear of their power. Any innocent casualties who were benefiting culture and society are acceptable losses. It's not going to change as long as they keep buying politicians.

The problem with any loser-pays or adjacent system is that you inherently favor anyone with deep pockets even more than the system does today.

It's "fake" lawyers, so I doubt they have deep pockets.

In this particular case but you make it hard for the fake "little people" to pursue claims and you make it hard for the real "little people" to do so as well while not really inconviencing large corporations at all.

I think a sufficiently large company would still pay - it'd likely be a drop in the bucket compared to hiring a legal team. (A troll like the one in the article? Still, depends on the price.)

I think it should switch to the strike system that YouTube, at least, favors: if you issue three fraudulent DMCA notices, you lose the ability to do so again in the future.

...until you spoof a new e-mail address. That won't scale well.

The DMCA takedown form can also request identity confirmation.

Require registered law firms to file these.

Yes, it'll cost money. But these fraudulent claims cost money, too.

Look at Nintendo, they're creating opportunities even when they try to stop anyone from using their things.

Not a lawyer but isn’t it your rights to protect your copyright? As in, if you file fraudulent notices, YT removes you ability to file more, then you have a legitimate notice to file, now you presumably can sue YT for denying you the right to defend your copyright.

Tough shit, you shouldn’t have sent the three fraudulent ones then. It’s all in the terms of service you have agreed to.

Youtube would probably be violating dmca safe harbor if they required claimants to agree to their terms of service.

Ideally, this would be written into law.

I mean I don’t disagree with you as a person. I am saying that YT might be hesitant to take this stance because the legal system might not share this sentiment. That’s for their lawyers to figure out.

> isn’t it your rights to protect your copyright?

Sure. But you don't have the right to harass people who haven't done so. I'm obviously not a lawyer, but I would imagine that at some point, vexatious litigation protections ought to kick in.

And who decides a claim was fraudulent? Historically, the fraudulent claims have gotten away with it while the target has at least had to remove the video or at worst had their accounts banned. Yet, nothing happened to the fraudster.

For larger and more litigious companies like Nintendo one would think YouTube wouldn't continue to accept takedown requests from random unverified users

The problem with that is, the law absolutely demands that the platform comply with any valid takedown notice, so YouTube isn't going to risk having any false negatives (due to internal miscommunications on Nintendo's side, etc.). It's made the responsibility of the uploader to challenge it with a counter-notice, but YouTube makes the process for those far more difficult than what the law says. (YouTube opens itself up to liability if it doesn't put the video back up upon receiving a counter-notice, but it's not like the uploader would be able to sue YouTube for much of anything.)

In this case, the notice wasn't even quoting the right section of law! Is it still considered a valid takedown notice, then?

10 year prison sentence for anybody sending fraudulent takedowns, including all lawyers involved.

How do I prove it's fraudulent? Hire a lawyer?

Crimes are prosecuted by the government.

Never denied this fact.

To be clear, I am suggesting that fraudulent DMCA claims should be a crime, the government should investigate and prosecute these claims after you report the crime to them.

This is great until a small time artist gets put on trial facing 10 years for art used by megacorp, that is originally theirs but hard to prove it.

In this scenario, has megacorp proved the art is theirs? Because, if so, how, and if not, then surely the original claim isn't unambiguously fraudulent?

This thing should be based on some cryptographic proof/claim, it's really not that difficult to setup. More problematic part is to agree that everybody should be using "this" method, not "that" method.

The system is broken and I can't see a way to fix it.

With blood.

No I'm not being edgy. That is the only way anything is going to change regarding the litany of fucked up corporate practices in our country. Our governments are ineffective at best and are active abettors at worst (read The Chickenshit Club for why they won't ever seriously prosecute execs). Boeing (completely different scenario from the OP but it's recent) has no qualms with killing to maintain the status quo, why should people that want actual change be any different?

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