

Should Bogus Copyright Takedown Senders Be Punished? - denzil_correa
http://torrentfreak.com/should-bogus-copyright-takedown-senders-be-punished-120909/

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noonespecial
A small amount (and I mean _small_ as in anyone can afford it, something like
$5 or $10) should be required in escrow to make the report. If the report was
valid, there is no contest and the content is taken down, your money is
returned.

If the takedown _is_ challenged, and turns out to be false, the money is split
between the hosting service _and the poster of the content you tried to have
removed_.

People will try to game the automatic detectors to get false positives (and
some $ for themselves) but for some time, this will be a feature, not a bug.
They'll get real accurate, real fast, even if it means human review of every
takedown.

~~~
DeepDuh
I think that's too small. I'd rather see something like

DEPOSIT = MIN(MAX($20, 0.1 * RevenueLossDuringTakedownProcess), $100)

A small content provider a) is able to never make a bogus claim since he will
not do it automatically and b) should be able to bet $100 on it.

~~~
dllthomas
Except, it's not going to be $100, it's going to be $2000, because the hosting
provider has an incentive to report as high a RevenueLossDuringTakedownProcess
as they can get away with. A lot of small artists are not going to be able to
lock up $2000 at several sites.

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eli
Filing a false DMCA takedown is already a crime. It's perjury.

~~~
kps
Then the question can be rephrased, for the US anyway, as “Should that part of
the DMCA be enforced?”

~~~
greyfade
That part of the DMCA, sadly, doesn't exist. The only penalties it gives are
for the infringement and for the failure to take content down when given a
valid request.

There's nothing for false claims. In fact, I don't think there are any
provisions for punishing fraudulent Copyright claims.

~~~
chris_wot
Wrong. See 17 USC § 512(f):

(f) Misrepresentations.— 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. [1]

1\. <http://www.law.cornell.edu/uscode/text/17/512>

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ashray
Something to add into the discussion here are anti piracy agencies. The ones
that advertise themselves as 'we can insert bad packets into torrents so that
pirating your content takes longer or becomes impossible'. Many of these
outfits will issue bogus takedown notices and then use that as proof to gain
clients.

An example, Agency A sends a request to TPB to remove the latest Red Hot Chili
Peppers album. They don't represent universal but if TBP removes the torrent
then they go running to Universal and score a contract to 'safeguard' their
content online and make sure infringing websites get notices. The first few
notices they send out are almost always bogus. Perjury, but this is now an
actual business!

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dllthomas
If the system is to work as designed, it's a hard question. With not-a-lot to
discourage people from posting copyrighted works, there will be a lot of media
on a lot of safe-harbor sites deserving of a take-down notice. Remove the
first 10%, and you've not actually made it appreciably harder for those
interested to find the content - you have to be at least fairly thorough. So,
you are stuck filing a bunch of these notices. If you make a mistake just one
time in a thousand, legitimate artists operating in good faith will be making
a mistake here or there. Jailing them is not optimal. On the other hand, abuse
of the system is obviously happening, and should be punished. Telling the
difference, in some cases, will be difficult.

~~~
Turing_Machine
Artists are rarely the ones who file these notices. Typically the filers are
lawyers, who should know better.,

I'd be okay with disbarring them, personally.

~~~
dllthomas
That actually doesn't matter. You're advocating someone bear the risk of a
ruined life over a single mistake, and given the number of takedowns needing
to be filed there will be mistakes made. Someone will have to bear the cost of
that risk.

Of course, this is all leaving aside larger reforms - I just think that
harsher liability is not an obvious band-aid; it has issues too.

~~~
Turing_Machine
"That actually doesn't matter."

Why? Aren't lawyers supposed to be professionals who are held responsible for
their mistakes?

Filing false notices can ruin lives too.

PEs and doctors lose their licenses and/or have to pay massive malpractice
judgments for mistakes all the time. Why not lawyers?

~~~
dllthomas
Because the analysis is of what it does to the burden placed on artists (or
those, really or purportedly, operating on their behalf) in the existing
system. If the cost of a mistake is a ruined life, that side of things gets
radically more expensive.

All of my analysis here is predicated on "if we want to try to make the
existing system work like it is supposed to," which I will be the first to
agree is not our only option; even in that restricted scope, my conclusion was
"it's tough to say..."

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hsmyers
To hell with the suggested three strikes nonsense. I would prefer the more
draconian solution: 10k fine for every instance of bogus takedown. Money going
to owner of the site in question.

~~~
sukuriant
Well that's an interesting idea. Now, what happens if a small-time artist that
doesn't follow the same distribution philosophy as many other artists these
days (for example, if he followed a "I want money for my works" perspective),
files what he thinks is a legitimate take down request and turns out to be
wrong? 10k fine? He's small time and can't afford that.

The law is not a fine scalpel, it's a blunt instrument; and people supporting
law creation need to remember that. This goes on both sides.

~~~
icebraining
How can he be wrong? He can't recognize his own music?

The problem are automated systems; the solution is just not to use one.

~~~
sukuriant
Using a 10 second sequence that happens to be the same across multiple songs.
Not knowing the exact details of the law, and thinking that reproductions of
the song are also owned by him?

~~~
icebraining
Having to listen to the full song (or, alternatively, not going after people
who are just distributing ten second excerpts) and having to know the law
before beating people with it don't seem unreasonable demands to me.

~~~
sukuriant
Is 10 seconds of the song considered fair use by big media?

~~~
icebraining
I'm pretty sure big media considers fair use an obscene concept, but I don't
really see how is that relevant, since I didn't say ten seconds of a song
should become fair use.

~~~
sukuriant
I was extending an assumption based off:

"not going after people who are just distributing ten second excerpts"

~~~
icebraining
You are forgetting to account for context.

I was saying that they couldn't go _if they can't afford to lose ten grand if
they're wrong about the song_ , not that it'd be illegal to do so.

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Zaheer
I recently got a copyright takedown request for a site of mine from a
competitor. Of course the request was bogus, but the availability of template
copyright takedown emails online makes it very easy for any Joe to request a
takedown. Maybe requiring more effort for people to submit takedown requests
could help minimize bogus senders.

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sosuke
I like the idea in the comments about having a charge placed on each take down
notice issued, might do the trick.

~~~
adharmad
But why should a valid notice be charged? Isn't it similar to paying to report
a theft[1]?

[1] I know I have used the word theft loosely here.

~~~
drcube
It's not theft, though. Copyright infringement is civil, not criminal (correct
me if I'm wrong). Filing a suit against someone is a more apt analogy, and
nobody gets to file for free unless the lawyer thinks there's a good enough
chance at a monetary award.

~~~
krickle
I think technically you are not wrong but actually depending on how angry the
media corporations are you can get your assets frozen or be extradited like a
criminal.

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drcube
What about Google and other companies' auto-takedown bots? Should they be
penalized for getting it wrong?

~~~
icebraining
On what grounds would a company be penalized for taking down parts of their
own websites? Should YCombinator be penalized if they delete a post?

~~~
bpatrianakos
They shouldn't but if you can't have a perfect system then it's best to have a
system as close to perfect as possible and that is something we do not have.
So ideally an entity wouldn't be punished for requesting a takedown of their
own content but because of the insane volume of bogus takedown requests I
think it's better to punish those who send them and if anyone accidentally
sends a takedown request for themselves then them's the breaks until the
system can differentiate between legit, bogus, and self takedown requests.

Furthermore, I'm not sure how YC deleting a post and issuing a DMCA takedown
request against content on their own site are the same thing. This isn't about
deleting content at all. Whether a site deletes content isn't at issue whether
it violates copyright or not. The issue is sending bogus takedown requests to
others.

~~~
xtdx
So if gmail's spam filter isn't perfect, it's better to have no spam filter?

~~~
bpatrianakos
No, exactly the opposite. I'm saying if you can't have perfect then take the
next best thing. In your example the next best thing would be taking an
imperfect spam filter over none at all.

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zeruch
In a word, "yes". A lot of the 3rd party DMCA mills (i.e.BayTSP, now part of
Irdeto, or Attributor before it was bought by Mark Monitor) pretty much get
strongarmed by their Big Content paymasters (as much as I find that bad, the
combination of some of the others in that field, who have a total lack of
scruples and will do whatever is asked as log as a buck is to be made).

The result is often a Vietnam-like fixation on "how many notices did you send
this week????" and other such drivel.

THAT in turn drives carelessness with what gets flagged for a notice being
sent.

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ajanuary
Off topic, but almost every link in that article seems to link the wrong part
of the sentence. Is it just a linking style I'm not familiar with?

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antidoh
Could the punishment be founded on restraint of trade? Does money or other
consideration have to change hands for there to be "trade?"

Or would it be the more obvious restriction of free speech. Is anyone but the
government required to "do no harm" to free speech?

~~~
chc
> _Or would it be the more obvious restriction of free speech. Is anyone but
> the government required to "do no harm" to free speech?_

Not in America, aside from some very specific exceptions.

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chris_wot
17 USC § 512(f) of OCILLA already allows for damages for misrepresentations.
If everyone who got a false takedown sued then they would soon stop.

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gwillen
Yes. Duh. Now, if wishes were horses...

