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Comment by hexator | Hacker News Reader

There needs to be some sort of penalty for filing frivolous DMCA notices.

There is. 17 U.S.C. 512(f) explicitly provides penalties. The problem is that this subsection is so rarely enforced it might as well not exist.

The subsection requires that the person "knowingly materially misrepresent [...] that material or activity is infringing". Proving that the misrepresentation was made knowingly can be extremely difficult.

Yeah how are we ever gonna possibly prove that against an AI-powered tool. It's the same with why police so readily embraced bad AI tech. It's all about shifting the liability and diffusing individual responsibility

In this case, you know who claimed it. In most cases, you don't, because Google does not verify identity.

It's currently the rage in blackhat SEO: just say you're John Doe from Doeville and competitorsite.com is infringing on your copyright. Google will remove that specific URL from the SERPs and there's a 50/50 chance whether the target gets a notification from google or not.

If they do, they can counter claim directly and it takes 12-48 hours to be reinstated.

If they don't, they have to figure out what's going on by using the Lumen Database (the only way to receive that information because Google is horribly bad at basic legal matters) and finding the notice, which will contain the exact URL (because fun fact: the claim and counter-claim are case-sensitive, the removal-from-serp is case-insensitive), and then do manual counter-claim, and it takes anywhere from 3 to 30 days.

During that time, your competitor will just be gone from the SERPs.

I mean there definitely are penalties, but they only exist if you actually go to court. DMCA essentially serves as game of chicken with no one actually wanting to go to court.

Penalties and counter-suits require intentional misrepresentation by the claimant, which is so painfully unprovable that the existence of penalties for malicious claims may as well not exist. I mean I suppose it can stop some rando guy from sending out claims for lols, but stuff like what Microsoft and a number of other corps do is extremely predictable and certainly malicious in nature.

My cynical view is that the half-measure (punishments for impersonation rather than spurious claims) just prevents well-intentioned protestors from highlighting the insanity of the whole system.

DMCA seems like an ideal place to have the winner pay all parties' attorney's fees, plus damages. It's usually pretty objective and easy to see whether something infringes.

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