There is a hidden agenda in saying that this "fixes the DMCA." It has a morass of serious issues untouched by these modifications.
> Such as..?
Trying to revise or remove the DMCA wholesale would be a much more difficult undertaking, and correspondingly less likely to succeed.
(I recommend reading the bill to everyone, by the way. It's only five pages long.)
Correct, the DMCA has made it possible for linking to infringements to be found illegal. This bill doesn't touch that. You can't just handwave it to the courts when the DMCA is the foundation of their opinion. The DMCA is still responsible for its unintended consequences.
I'm in complete agreement. But fixing that issue will be more difficult than fixing this one, in my opinion. Getting this bill passed would do some good even if it is overstating things a little.
The takedown procedure is not, stricly speaking, "a guilty until proven innocent" system. Its a system that provides immunity from liability for illegally distributing copyright protected content provided that it was originally submitted by someone other than the distributor, and the distributor stopped when notified by the owner of the copyright. (It, likewise, provides immunity to the distributor for claims by the submitter for stopping distribution provided that the distributor restores the distribution once the submitter provides a counternotice.)
But the takedown procedure itself doesn't create new penalties or presumptions of guilt, it just provides conditional protections from any existing penalties for certain acts provided that those acts are discontinued on specified forms of notice.
So in practice the DMCA takedown procedure provides a method of immediately (and sometimes permanently) removing content (not necessarily infringing) from any major provider.
As an example, the method of removing allegedly infringing content from YouTube is not a DMCA takedown but it is a result of that mechanism.
I don't think the DMCA takedown procedure is much involved. The actual problem that causes that is the resource imbalance between content owners and individual users. Without the DMCA takedown procedure and its associated liability shields, instead you'd have content owners sending threats to sue to the content hosts, who would have to choose whether they'd like to fight the content owner or keep the affected client.
With the DMCA takedown procedure, really, its exactly the same thing, except that the host has more security that they will have no liability to the purported content owner for any past distribution if they comply with the request.
We know this to be true, becuase this was the situation that was occurring before the DMCA which led to the pressure from content hosts that resulted in the inclusion of the safe harbor provisions that include the "takedown procedure" and the related counter-notice restoration procedure.
The situation before the DMCA was preferable because it involved only the general legal system rather than a badly-designed special case.
It's not merely the result of a resource imbalance but of a fundamental misapprehension of the nature of content ownership - the set of 'content owners' recognized in practice by the DMCA is not the entire set of owners of content.
It provides an equally special incentive to comply with users; the safe harbor has two sides.
The difference in effect is the same as the difference in effect in threat of litigation absent the safe-harbor: the difference in resources on the two sides and the significance of the liability the host might face from either side.
> The situation before the DMCA was preferable
If you didn't want to have big businesses freely hosting user-submitted content, maybe. Content owners weren't the backers for the safe harbor (they wanted the freedom to sue first and get money), content hosts were. It doesn't create additional incentives for content hosts to comply with content owners (real or purported), it removes pre-existing opportunities for content owners (again, real or purported) to extort content hosts.
It provides very nearly no incentive whatsoever to comply with users. What provisions it does provide are practically unenforceable due to absurdly high standards for users and absurdly low standards for 'content owners'.
I don't care a whit for your interpretation of the law. Especially when your interpretation flies in the face of the text of the DMCA (see in particular sec 202 on standards for perjury, which differ significantly for notices and counter-notices). I care about results - and the results, across dozens of major content hosts, speak for themselves.
The DMCA has not only failed to protect users and content creators who aren't 'content owners', it has also given rise to independent policing mechanisms modeled on and derived from it but with even fewer protections.
The results are basically identical to the pre-DMCA situation except that the risk of monetary damages to content hosts is less -- most content hosts takedown material immediately on request by purported content owners to prevent lawsuits, and most content hosts don't care much about complaints from users (including counter notices) because the litigation threat is miniscule. The DMCA safe harbor provides a defense against litigation for content hosts who comply with notices and counter-notices, but it doesn't change the fact that, with or without the safe harbor, the only litigation threat content hosts are worried about is litigation by purported content owners, not litigation from users (because, in the first place, they already have an agreement with users, and content hosts are careful to construct such agreements to foreclose any litigation threat resulting from the host deciding not to host any particular content.)
Any imbalance in the perjury provisions that makes counter-notice more risky is irrelevant, because the user-side safe harbor is irrelevant, because a safe harbor only matters when, without the safe harbor, there is a threat of litigation that matters.
My point is, and remains, that the problem you are referring to in results goes far deeper than the DMCA safe harbor, and balance between the two sides in the safe harbor provisions don't matter, because only one side of the safe harbor has any meaning -- content hosts don't need a safe harbor against users.
That being said, I'd support much stronger standards on the notice side, not for some completely pointless idea of balance, but because the practical results of false notices are the suppression of speech; for that reason, I'd propose creating the following standard for liability for material misrepresentation in takedown notices:
Any material misrepresentation in a notice (whether knowing or not) would make the party filing the notice liable for actual damages to content hosts and/or users resulting from notice.
Any material misrepresentation in a notice where the filing party either knew the representation was false, or reasonably should have known the representation was false, or cannot show by clear and convincing evidence that they had a reasonable basis to believe was true with high confidence, will also allow punitive damages.
And the entire content of a notice should be under penalty of perjury.
But none of this is about balance between notice and counter-notice, which -- aside from being irrelevant -- shouldn't even be a goal in the first place, its about what the standard needs to be given the that what is being created is a government-provided incentive to suppress speech.
It's absolutely a "shoot-first, ask questions later" system that is strongly biased in favor of the accuser. It's okay to provide a quick way to take down infringing content, but it has to come with strong penalties and reparations for cases where the accuser abuses the power.
I'm not at all arguing in favor of eliminating the safe-harbor provisions - I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.
Without the DMCA safe harbor, the content host would be in a very similar position when presented with a demand to remove the content from a content holder. The only difference the safe harbor provides is that the content holder can't be sued for content they accept and distribute but don't exercise editorial control over unless the content owner gives a takedown notice and the content host ignores it, so that, as a consequence, content owners can't skip the whole demand step and just start filing low-chance-of-success, high-reward lawsuits against deep-pocket defendants.
> I'm not at all arguing in favor of eliminating the safe-harbor provisions - I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.
> I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.
The penalties for both are the same, and are specified in the same paragraph without distinction, at 17 USC 512(f):
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.
Take a look at the required elements of a takedown notice, and the required elements of a counter-notice. Look at which statements are made under penalty of perjury. There is a noticeable lack of equal protection there. Nowhere is the accuser required to perform any kind of due diligence to ensure that they have a justified takedown notice.
You can try to preempt things by hosting everything yourself, but they can always go after your ISP. Unless you own the whole internet[1], there's somebody who's not you who can be blackmailed into disabling access to your content.
([1] or otherwise render the rest of the internet ineligible for safe harbor, such as by making them financially benefit in a way directly attributable to whatever activity may be alleged to be infringing.)