Comment by declan | Hacker News Reader

Comment by declan | Hacker News Reader

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If you send bogus DMCA takedown notices, and this qualifies as one, there can be legal consequences. The DMCA requires:

"A statement that the information in the notification is accurate, 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."

Whoops! This particular list of "infringing" URLs wasn't actually, well, accurate. The problem for whoever sent this bogus takedown (Wicked Pictures or its agent) is that now they can be held liable.

In a case brought by EFF in response to an earlier bogus takedown from Diebold, a federal judge in California held that Diebold could be "liable for damages" -- even though Diebold had by that point withdrawn the takedown request and promised not to send another.

DMCA 512 section (f) says that someone sending bogus takedowns "shall be liable for any damages, including costs and attorneys’ fees..." In the Diebold case, Diebold eventually paid EFF something like $125K in lawyer fees.

Note that this situation probably won't get that far. That's because the DMCA doesn't require Google or any other provider to comply with bogus takedown notices. And Google happens to have some smart attorneys (at least one ex-EFF lawyer, in fact) on its payroll who are well aware of that fact.

> Note that this situation probably won't get that far. That's because the DMCA doesn't require Google or any other provider to comply with bogus takedown notices. And Google happens to have some smart attorneys (at least one ex-EFF lawyer, in fact) on its payroll who are well aware of that fact.

Google removed all URLs except 3:

http://www.google.com/transparencyreport/removals/copyright/...

In other words, Google is not the EFF.

Considering that they get requests for something like 8 million URLs to be removed every week, your ire seems a bit misdirected.

Safe harbor has enabled the modern web in many ways, but the DMCA takedown process is still heavily, heavily weighted toward the claimants.

It looks more like the URLs not taken down were mostly malformed or duplicates of earlier claims and they took action on the rest. Purposefully not acting on DMCA complaints due to obviously bogus takedown notices doesn't happen very often because you generally have to be really sure of what you're doing. Hard to do that when you have 8 million URLs to sift through to find the problematic ones.

> your ire seems a bit misdirected.

Ire? You are misreading my comment. I merely sought to correct the parent poster’s view that Google would not remove anything partly because they have lawyers who used to work at the EFF. The fact is that Google did remove almost everything, and merely employing people who used to work for the EFF does not cause Google to be the EFF.

Yes, but you can certainly automate the process to a large extent. For example, many sites simply don't have the functionality allow copyright infringement. Also many sites will have >99% false positives, whereas torrent sites will have >99% true positives.

They could hire a few people to get through as many computer sorted reviews as possible, and the rest of them fall through the cracks.

The "under penalty of perjury" phrase modifies the second clause, not the first. In other words, it's not perjury if the information in the notice is inaccurate -- it's perjury if you falsely claim you are authorized to act on behalf of the grieving party.

So I'm thinking if I want to boost my rankings, all I have to do is file a DMCA notice on my competitor's sites?

Certainly someone has to be doing this, somewhere. At worst, sneak your target URLs into a long list of torrents. How much is bumping off a few competing search results worth?

If you intentionally file a false claim, you can be liable for damages under the Act. But that's not the same as perjury. See 17 U.S.C. 512(f).

I wonder how much due diligence Google puts into verifying DMCA notices beforehand. And if you wanted to do it "legit" you could create some works with search terms you wanna censor. So like, "Hotel Reservations in X", a photograph of a Ramada Inn. Then get these takedown firms to go spam notices like Wicked did here, and collateral damage ends up removing some of your competitors.

Just seems rather abusable.

The DMCA is deliberately designed to discourage recipients of takedown notices for doing any verification beyond that the notices ate in the correct form before complying, since the safe harbor only applies when a proper (in form) notice is complied with and there is expressly no liability that can attach for complying with a formally correct notice that is substantively incorrect.

So I'd assume any due diligence is directed at formal correctness rather than substance as any other approach would have added cost to implement while increasing legal risk.

And then they file a counter-notification and the links are back.

Yeah, which means people have to check searches for their result, then the DMCA notice, then file counterclaim and wait for Google to reinstate it. Seems like a pretty nifty blackhat tactic, especially if timed right.

Well, not quite, at least by my reading. It says specifically:

"that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

In other words they are acting on behalf of the owner of the owners of the content being infringed (the content located at the URLs).

If the content at the URLs is NOT owned by Wicked, than they are claiming to represent the owner of the content at those locations, when they are in fact not.

> If the content at the URLs is NOT owned by Wicked, than they are claiming to represent the owner of the content at those locations, when they are in fact not.

No, there are two separate claims:

1) that the person represents the owner of a particular copyrighted work, and

2) that particular hosted content violates the copyright on the particular copyrighted work.

Only the first of those is under penalty of perjury. If the particular identified copyrighted work is owned by the party represented, then even if the particular identified hosted content doesn't violate the copyright of the identified work, there is no perjury issue (there may be a knowing false claim of infringement issue, but that requires proving that the person sending the notice knew that the identified hosted content did not infringe.)

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