The DMCA takedown problem | Hacker News Reader

The DMCA takedown problem

marco.org

14 pointsblasdel28 comments

Sorry, but your article is completely wrong, and your site doesn't allow comments, so I'll have to post here.

The DMCA works very well for copyright owners, our users, and us as a web host. Here's how the process should work for an abusive DMCA request:

1- DMCA request (seemingly legitimate) is received, including a statement under penalty of perjury that the sender is the copyright owner.

2- Host contacts the site owner/removes the content.

3- Site owner is the legitimate owner of the content, so files a DMCA counter-notification with the host, with a statement under penalty of perjury that they are the copyright owner.

4- Host immediately brings disputed content back online. One of the parties is guilty of perjury, and they are both free to duke it out in court to have the content removed. Content can and will remain online until a court orders it removed. Web host has no liability for content remaining online (even if the counter-notification was bullshit), and the matter is presented and judged where it should be for such a dispute: in court.

If you believe that someone filed a bogus DMCA notice against your content, immediately file a counter-notice and your content should be immediately (or shortly, if not automated) back online. Then, you can sue the person who filed the complaint, and they will have quite a bit of responsibility and liability.

Sounds like the real fault in the process is that no-one understands it and that the system doesn't make itself accessible to the average lay-person. Maybe what we really need is a site that explains everything more clearly and makes filing a notice/counter-notice much simpler.

> immediately file a counter-notice and your content should be immediately...

No, because by putting your content back up the host is opening themselves to liability if it turns out you are wrong. Nobody is going to do that

>sue the person who filed the complaint

The person who filed the complaint is a mailinator address, or in Russia/Iran/Cuba or works for a corporation with more lawyers than you .

"No, because by putting your content back up the host is opening themselves to liability if it turns out you are wrong. Nobody is going to do that"

No, the point of DMCA is the provider is agnostic to who owns the content. Its the making a decision on who owns the copyright that opens them up to litigation, because they would lose safe harbor protection. Incidentally, NOT putting the content back up would be a violation of the DMCA, which also opens you up to litigation.

"The person who filed the complaint is a mailinator address, or in Russia/Iran/Cuba or works for a corporation with more lawyers than you."

So they're either a 1) liar, in which case your content is back online and you're back where you started or 2) a big corp who can threaten to get their way? Welcome to the fundamental problem with the DMCA: it can be abused.

Incidentally, NOT putting the content back up would be a violation of the DMCA, which also opens you up to litigation.

I don't think the DMCA says anything about having your account canceled for causing problems, however.

("Sorry, we determined that your node was using too much CPU, and have terminated your account." Now the host does not have to deal with your DMCA problems, as they are no longer your host. They can even pull a Comcast and keep the limits unpublished and enforce them arbitrarily as they please.

The little guy never wins.)

Totally true!

Isn't that the point though? The host receives a DMCA request and take down the content, they are perfectly safe (safe harbor provision etc)

You (the author) come along and say, no it isn't illegal - please put it back up. If they put it back up don't they lose the DMCA safe protection? They are publicly siding with your claim that it's legal.

Also there is the practical point that a takedown notice simply means clicking a link on the host's site or emailing an address. Getting it back involves sworn affidavits, visits to lawyers an trying to find a human contact at the hosting company.

No, the order of operations the OP posted is correct-- restoring content removed by DMCA is the lawful response to counter notifications, specifically to discourage abuse of the DMCA: if the notifying company is serious about the takedown, they have to be willing to sue you, and the evidence has to be there.

Wrong!

This is a common misconception.

According to the DMCA, the host MUST wait at least 10 business days after receiving a counter-notification before they can put the content back online. This is ostensibly to give the complainant a chance to file a lawsuit.

In other words, I can knock almost anything off the net for two weeks with a single bogus message.

See for yourself in 202(g)(2) http://w2.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304...

It's true that the linked article didn't go into detail about counter-notification, but it is dead on and I think you're the one who doesn't fully understand the system :)

Yes you can knock almost anything offline for a fortnight, however you're also guilty of perjury, which I know here in Canada can put you in jail for up to 15 years enshrined by the constitution.

You can be a moron all you want, and anyone who tries it is welcome to a hefty fine or jail time.

Yet, we hear about bogus notices all the time.

You hear about them, but where's your facts? We're a sizeable host that receives notices on an almost daily basis, and we've yet to receive a single bogus notice.

In my opinion, the bogus DMCA notice issue is VERY overblown.

Sorry, but in the article, it mentioned a completely fraudulent complainant. While each host is definitely free to act as they please, if you pointed out that the original complaint was invalid (complainant info incorrect/could not get in touch) along with your counter-notice, we would reactivate your site immediately, as I imagine most reasonable companies would, since the original notice would be invalid.

In the case where the complainant was legitimate, then yes, your content would be offline for 10 days. However, the complainant would also be guilty of perjury, which would carry a sentence of 2-4 years in California. So, if you're affected, then go to court and get them locked up.

What is often overlooked is that without the DMCA the content host would be liable, so there would be no third party hosting on the Internet. Which pretty much means there would be no Internet as we know it today.

Granted, it's not a perfect system, but it's also not the worst thing out there.

That's fine, but that means you are waiving your rights to the safe harbor provision and opening yourself up to a lawsuit, should the person choose to pursue it.

I am not your lawyer, but I bet if you asked your lawyer he/she would recommend you always follow the 10 days rule.

...the complainant would also be guilty of perjury..

Not really. It's only perjury if the person writing the letter knew that they were lying. Which 1) is almost impossible to prove and 2) doesn't address the many, many people who send DMCA notices based on a genuine lack of knowledge about copyright.

It is basically toothless. (Out of curiosity, has anyone ever been prosecuted for a bad DMCA claim?)

If the original notice doesn't have real contact information, it is invalid. Once pointed out that the notice is invalid, there is no reason and no liability in not following an invalid notice.

How the process 'should work' is not how it works in practice. A good example is the numerous times that Wikipedia has had to delete an image depicting a trivial symbol that a white nationalist organization uses as their logo.[1][2] Wikimedia has a lawyer on staff and has considerable clout, yet they can be bullied by a small racist group.

How well do you think an individual fares against a large media corporation on a host that receives a large number of DMCA requests? I know I personally have read many accounts of musicians having their music removed from myspace and youtube with no recourse.

[1] http://en.wikipedia.org/wiki/File_talk:Crosstar.png

[2] http://en.wikipedia.org/w/index.php?title=Special:Log&pa...

And how many times has the system worked as intended? Any system is going to have some false positive rate.

If the logo/image you mentioned was owned by someone else, then it should be removed. It's not bullying, it's their rights, whether you agree with that or not. And if they don't own it, then at worst the logo should have been offline for 10 days.

We don't have enough data to determine of the few false positives we hear make up a decent portion of the total notices sent. From my perspective (I receive notices almost daily), the false positive rate is close to negligible, and the system is working, for the most part, quite well.

>And how many times has the system worked as intended? Any system is going to have some false positive rate.

So it's fine by you to fuck over an occasional innocent person to help some mega-corp's profits?

I'm supporting a system that protects copyrights and that seems to work well, for the most part. It's not perfect, but better than not having it, in my opinion.

Sounds like your issue is not with the DMCA, but with copyrights in general, which is entirely a different argument to be having.

Is the DMCA geared up for a "guerilla war" - ie can a bunch of motivated people target (for example) government sites and send them a string of take-down notices?

Other than the traditional one-rule-for-the-masses, but government is above-the-rules, is there any good reason this would not work? Common sense seems to dictate copyright ownership would need to be verified, but obviously this seems to be unnecessary for DMCA...

Well, the government generally uses its own servers, I think, and not hosted servers. So they'd be getting and responding to the complaints directly, and they've got all the lawyers they need, thanks to our tax dollars. Plus, it just might backfire by destroying what little government transparency we've got through the web.

It would be more interesting -- and directly painful -- to do this to political candidates' campaign sites. But of course, doing so would be fraudulent, and we'd like to take the high road.

Besides the fact that whoever sent out the DMCA notices would go to jail for 2-4 years (perjury sentence in the state of california), this probably wouldn't work because the owner of the allegedly infringing content (the person who received the notice) can just "instantly" file a counter-notice with themselves, or just not file the counter notice at all (probably don't need to send it to yourself if you're the owner, though I'm not positive on that one).

Then they can go after the sender, and lock them up for a while.

4 years in prison in a bankrupt state for sending a letter claiming copyright infringement? Yeah right. The Unabomber sent bombs through the mail for years without being caught. If someone can do that, it should be trivial to send email to hosting companies without going to jail.

Have you ever jaywalked? If so, you'll realize that not every law is enforceable.

This email happens to include your full name, address, and other contact information. And it also certifies under penalty of perjury that you are telling the truth.

If you don't believe that you can go to jail for 2-4 years in CA for committing perjury, google it. I'm not bullshitting you.

Perjury is a serious offense. Clinton was impeached for it.

You don't put your real contact information on fake letters you send.

Then the original DMCA notice (with fake contact information) is invalid and doesn't need to be followed.

The sender knows it's invalid. How does the recipient know?

In this hypothetical scenario, the person affected could take a few minutes to verify the information, and then report back to the host that the contact information is invalid.

But obviously you would just use the address of some large corporation, which will not be able to determine if it sent the legal notice quickly.

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