But they don't, because the former would require them to perjure themselves, and the latter just requires them to lie to a hosting company.
Misrepresentation of Fact
Knowledge of Falsity
Intent to Induce Reliance
Justifiable Reliance
Resulting DamagesAt first that seems pretty unlikely, but I could see them wanting to nip this in the bud so it doesn't become more common.
I’d argue in court that this is a pattern, not a one-off event and the damages need to be large enough to prevent this repeating.
Also, service providers are not identical. They chose Cloudflare because it was the “best” service. So damages include being moved to a worse service.
However, ICANN has a whole procedure they follow where complaints are fact-checked, whereas DMCA takedowns put an unreasonable burden on hosting providers that requires immediate action, and many hosting providers will take such action automatically to protect themselves.
I doubt they care about perjury. They care about results, and the DMCA gets them exactly that.
The phishing reports are interesting, providers aren't necessarily required to act as fast on those. Although, I suspect companies like Cloudflare who get used by countless phishers will probably also set up some kind of automated anti phishing system.
You are confusing false claims with filing DMCA requests on behalf of someone you don't have permission from.
>and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
A false DMCA request is misrepresentation.
Doesn't stop anyone with DMCA... DMCA is coming up on almost three decades of being a law, and requires statements made under penalty of perjury.
However many millions (likely billions) of DMCA takedowns issued, who knows how many false/bad faith... I wonder how many have led to prosecutions for perjury, even when filing tens of thousands, en masse...
No need to wonder, the answer is simple. Starts with a "Z" and ends in "ero".
Those take on the order of months to go through. Even if they did so, you wouldn't notice until much later. Meanwhile cloudflare and hetzner are faster. If you want to reduce harm by taking down a site you can't just let it stay up for weeks while the ICANN process plays out.