Should Bogus Copyright Takedown Senders Be Punished? | Hacker News Reader

Should Bogus Copyright Takedown Senders Be Punished?

torrentfreak.com

65 pointsdenzil_correa61 comments

A small amount (and I mean small as in anyone can afford it, something like $5 or $10) should be required in escrow to make the report. If the report was valid, there is no contest and the content is taken down, your money is returned.

If the takedown is challenged, and turns out to be false, the money is split between the hosting service and the poster of the content you tried to have removed.

People will try to game the automatic detectors to get false positives (and some $ for themselves) but for some time, this will be a feature, not a bug. They'll get real accurate, real fast, even if it means human review of every takedown.

I like it.

I think that's too small. I'd rather see something like

DEPOSIT = MIN(MAX($20, 0.1 * RevenueLossDuringTakedownProcess), $100)

A small content provider a) is able to never make a bogus claim since he will not do it automatically and b) should be able to bet $100 on it.

Except, it's not going to be $100, it's going to be $2000, because the hosting provider has an incentive to report as high a RevenueLossDuringTakedownProcess as they can get away with. A lot of small artists are not going to be able to lock up $2000 at several sites.

Filing a false DMCA takedown is already a crime. It's perjury.

Then the question can be rephrased, for the US anyway, as “Should that part of the DMCA be enforced?”

That part of the DMCA, sadly, doesn't exist. The only penalties it gives are for the infringement and for the failure to take content down when given a valid request.

There's nothing for false claims. In fact, I don't think there are any provisions for punishing fraudulent Copyright claims.

> In fact, I don't think there are any provisions for punishing fraudulent Copyright claims.

Well, isn't making false claims for monetary gain itself fraud? I think there are provisions for punishing that...

Wrong. See 17 USC § 512(f):

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. [1]

1. http://www.law.cornell.edu/uscode/text/17/512

The perjury applies to claiming to represent a copyright holder you do not. It does not apply to "misidentifying" your own copyrighted work, sadly.

So if I claim to represent a copyright holder when I do not, I have committed perjury due to the DMCA. If I "misidentify" some work as my own, I have not. Yes, there's a separate requirement of good faith, but that's not at all like perjury.

Personally, I think the penalty for bad faith DMCA notices should be that one loses the copyright claimed to be infringed, but the law contains no such provision. The reason I think that is because it's the only penalty that would convince the kind of people who spew out bogus DMCA notices to clean up their act.

Something to add into the discussion here are anti piracy agencies. The ones that advertise themselves as 'we can insert bad packets into torrents so that pirating your content takes longer or becomes impossible'. Many of these outfits will issue bogus takedown notices and then use that as proof to gain clients.

An example, Agency A sends a request to TPB to remove the latest Red Hot Chili Peppers album. They don't represent universal but if TBP removes the torrent then they go running to Universal and score a contract to 'safeguard' their content online and make sure infringing websites get notices. The first few notices they send out are almost always bogus. Perjury, but this is now an actual business!

If the system is to work as designed, it's a hard question. With not-a-lot to discourage people from posting copyrighted works, there will be a lot of media on a lot of safe-harbor sites deserving of a take-down notice. Remove the first 10%, and you've not actually made it appreciably harder for those interested to find the content - you have to be at least fairly thorough. So, you are stuck filing a bunch of these notices. If you make a mistake just one time in a thousand, legitimate artists operating in good faith will be making a mistake here or there. Jailing them is not optimal. On the other hand, abuse of the system is obviously happening, and should be punished. Telling the difference, in some cases, will be difficult.

Artists are rarely the ones who file these notices. Typically the filers are lawyers, who should know better.,

I'd be okay with disbarring them, personally.

That actually doesn't matter. You're advocating someone bear the risk of a ruined life over a single mistake, and given the number of takedowns needing to be filed there will be mistakes made. Someone will have to bear the cost of that risk.

Of course, this is all leaving aside larger reforms - I just think that harsher liability is not an obvious band-aid; it has issues too.

"That actually doesn't matter."

Why? Aren't lawyers supposed to be professionals who are held responsible for their mistakes?

Filing false notices can ruin lives too.

PEs and doctors lose their licenses and/or have to pay massive malpractice judgments for mistakes all the time. Why not lawyers?

Because the analysis is of what it does to the burden placed on artists (or those, really or purportedly, operating on their behalf) in the existing system. If the cost of a mistake is a ruined life, that side of things gets radically more expensive.

All of my analysis here is predicated on "if we want to try to make the existing system work like it is supposed to," which I will be the first to agree is not our only option; even in that restricted scope, my conclusion was "it's tough to say..."

There is however a big difference between Lawyer A: "I see I made a sincere mistake and apologize."

And Lawyer B: "Our machine gun takedown software fuzzy matches anything approaching our artist's name, or any track by him, doesn't examine the content, but just issue blanket takedowns by script."

Agreed, whole-heartedly.

To hell with the suggested three strikes nonsense. I would prefer the more draconian solution: 10k fine for every instance of bogus takedown. Money going to owner of the site in question.

Well that's an interesting idea. Now, what happens if a small-time artist that doesn't follow the same distribution philosophy as many other artists these days (for example, if he followed a "I want money for my works" perspective), files what he thinks is a legitimate take down request and turns out to be wrong? 10k fine? He's small time and can't afford that.

The law is not a fine scalpel, it's a blunt instrument; and people supporting law creation need to remember that. This goes on both sides.

How can he be wrong? He can't recognize his own music?

The problem are automated systems; the solution is just not to use one.

Using a 10 second sequence that happens to be the same across multiple songs. Not knowing the exact details of the law, and thinking that reproductions of the song are also owned by him?

Having to listen to the full song (or, alternatively, not going after people who are just distributing ten second excerpts) and having to know the law before beating people with it don't seem unreasonable demands to me.

Is 10 seconds of the song considered fair use by big media?

I'm pretty sure big media considers fair use an obscene concept, but I don't really see how is that relevant, since I didn't say ten seconds of a song should become fair use.

I was extending an assumption based off:

"not going after people who are just distributing ten second excerpts"

You are forgetting to account for context.

I was saying that they couldn't go if they can't afford to lose ten grand if they're wrong about the song, not that it'd be illegal to do so.

I recently got a copyright takedown request for a site of mine from a competitor. Of course the request was bogus, but the availability of template copyright takedown emails online makes it very easy for any Joe to request a takedown. Maybe requiring more effort for people to submit takedown requests could help minimize bogus senders.

I like the idea in the comments about having a charge placed on each take down notice issued, might do the trick.

But why should a valid notice be charged? Isn't it similar to paying to report a theft[1]?

[1] I know I have used the word theft loosely here.

Very good point, and I wonder how the same amount of false theft reports would be handled by the police. They might tell the person filing the reports they have to stop crying wolf, or perhaps start ignoring them altogether.

It's not theft, though. Copyright infringement is civil, not criminal (correct me if I'm wrong). Filing a suit against someone is a more apt analogy, and nobody gets to file for free unless the lawyer thinks there's a good enough chance at a monetary award.

I think technically you are not wrong but actually depending on how angry the media corporations are you can get your assets frozen or be extradited like a criminal.

What about Google and other companies' auto-takedown bots? Should they be penalized for getting it wrong?

On what grounds would a company be penalized for taking down parts of their own websites? Should YCombinator be penalized if they delete a post?

I was asking, not implying any position on my part.

I don't think website owners should be prohibited from deleting user content as they see fit. But I do think the takedown bots are different. They are mainly used to avoid lawsuits and to appease the RIAA/MPAA; websites wouldn't choose to use them if left to themselves. I think they cause as many problems as bogus DMCA notices and should be discouraged.

I don't necessarily believe the discouragement should be legal, but maybe. For example, if human oversight was required before the content was removed, that wouldn't necessarily restrict companies' ability to remove content, but it would minimize bogus takedowns by bots.

Again, I'm not really staking a position here, I'm just trying to start the conversation while I figure out my own views on the subject.

For example, if human oversight was required before the content was removed, that wouldn't necessarily restrict companies' ability to remove content, but it would minimize bogus takedowns by bots.

Sure it would; it'd make spam removal impossible, for example.

They shouldn't but if you can't have a perfect system then it's best to have a system as close to perfect as possible and that is something we do not have. So ideally an entity wouldn't be punished for requesting a takedown of their own content but because of the insane volume of bogus takedown requests I think it's better to punish those who send them and if anyone accidentally sends a takedown request for themselves then them's the breaks until the system can differentiate between legit, bogus, and self takedown requests.

Furthermore, I'm not sure how YC deleting a post and issuing a DMCA takedown request against content on their own site are the same thing. This isn't about deleting content at all. Whether a site deletes content isn't at issue whether it violates copyright or not. The issue is sending bogus takedown requests to others.

I read parent's post as taking about self-censoring bots like Youtube's Content-ID, and not DMCA sending bots. As far as I know, Google doesn't use the latter.

So if gmail's spam filter isn't perfect, it's better to have no spam filter?

No, exactly the opposite. I'm saying if you can't have perfect then take the next best thing. In your example the next best thing would be taking an imperfect spam filter over none at all.

I think he's pointing out the problem that if they start penalizing false DMCA claims, people will find non-DMCA ways to take things down.

Given that publishers have managed to get Google's ContentID system to misidentify public domain songs, bird songs, and other such things as their exclusive property, bad faith or otherwise negligent copyright claims are a real problem.

Ref: http://www.geekosystem.com/rumblefish-birdsong-takedown/

I agree with you, but the problem the parent poster is pointing out, is that YouTube is a private site. Google should be able to do what they want. If they do something stupid (and I agree the copyright bot is stupid), then it's their own problem. In theory, a competitor could do a better job at not repeating goggle's mistakes, and beat them in the market.

It's worth mentioning that copyright bots are not even required by law. Google could be complying to dmca requests without automatic take downs. They're going beyond what the law requires because they want to be in Hollywood's good side. So a competitor could still be legal without the bots.

"Google is a private company" is not a set of magic words.

See my other comment for a simple scenario that shows why: http://news.ycombinator.com/item?id=4497393

BTW, there probably are some viable claims someone could make against a person convincing third parties to remove their work from the internet, particularly if they could show financial harm. However, recordings of natural bird song and the like are unlikely to get protected via expensive lawsuits because the upside of that is incredibly limited.

I suppose we might see litigation whenever DMCA notices start getting used for election-related hijinks, though.

Why not? If they create poorly-designed bots that damage others, why shouldn't they be held responsible?

If I create a lawn-mowing bot that goes rogue and runs over the neighbor's cat (or in a less-bloodthirsty scenario, wrecks his expensive landscaping) I'll be held responsible, yes?

I don't see why automation should be an excuse. If anything, systems that are intended to operate without human supervision should be held to a greater standard of safety, not a lower one.

Because the bot is cutting Google's own yard (e.g. Youtube), not the user's.

If my landlord's unattended lawnbot runs over my kid, he's probably going to be held responsible, right?

Yes, but copies of videos aren't kids. They're not even property.

Sigh...

If my landlord's unattended lawnbot runs over the mailbox and destroys a video that my friend sent me, he's going to be held responsible, right?

Property rights aren't absolute. They just aren't, sorry.

In general you can't damage someone else just because they happen to be on your property. Not tenants, not guests, and in some cases, not even trespassers.

Isn't it a bit of a stretch to suggest that Youtube taking down videos is damaging to the owner?

I see the analogy more like this -- if you place your mailbox on my property (your video on youtube), the unattended lawnbot moves the mailbox off their property.

Your landlord can't, because the video is your property. A copy on Google's servers isn't, even if you retain the copyright.

In any case, none of these are proper analogies. Google is providing you with a service, not holding stuff for you, and they're simply cutting people who have no contract with them except for their own ToS off.

Youtube isn't really Google's own yard, though. Or isn't wholly their own yard, at least.

Google has chosen to make money from other people's content, and as such they have a responsibility to treat that content with respect.

Private companies have no obligations to honor freedom of speech. Google has every right to say that your content must get a passing grade from [insert black box]. If the black box happens to be designed to filter out copyright violations, it gets no special treatment from the law. Having said that, the main reason for many of the oversensitive, automated bots, is that big companies like Google (who have user generated content), still need to be incredibly careful in the area of copyright to ensure that they are protected. I suspect that strengthening safe harbor would largely solve this problem. I would also like a system where sites were highly incentivised to promote free speach on their platforms, but other than public pressure, I do not see how to do this.

Actually, this has nothing to do with freedom of speech, and even Google's terms of service are irrelevant. Here's a very simple scenario that results in hauling Google and/or Google's partners into court:

1. Alice produces a video consisting of 100% original creative content, and registers copyright to it.

2. Alice licenses the video to Bob for distribution, under terms which allow uploading to YouTube.

3. Bob uploads a copy of the video to YouTube.

4. YouTube flags the video and declares the copyright to be held by someone other than Alice.

5. Alice, who is not bound in any way by Google's terms, heads down to the courthouse with a copy of her registration papers and files suit over the misrepresentation of her copyright.

In a word, "yes". A lot of the 3rd party DMCA mills (i.e.BayTSP, now part of Irdeto, or Attributor before it was bought by Mark Monitor) pretty much get strongarmed by their Big Content paymasters (as much as I find that bad, the combination of some of the others in that field, who have a total lack of scruples and will do whatever is asked as log as a buck is to be made).

The result is often a Vietnam-like fixation on "how many notices did you send this week????" and other such drivel.

THAT in turn drives carelessness with what gets flagged for a notice being sent.

Off topic, but almost every link in that article seems to link the wrong part of the sentence. Is it just a linking style I'm not familiar with?

Could the punishment be founded on restraint of trade? Does money or other consideration have to change hands for there to be "trade?"

Or would it be the more obvious restriction of free speech. Is anyone but the government required to "do no harm" to free speech?

> Or would it be the more obvious restriction of free speech. Is anyone but the government required to "do no harm" to free speech?

Not in America, aside from some very specific exceptions.

17 USC § 512(f) of OCILLA already allows for damages for misrepresentations. If everyone who got a false takedown sued then they would soon stop.

Yes. Duh. Now, if wishes were horses...

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