
The DMCA takedown problem - blasdel
http://www.marco.org/238183860
======
drusenko
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.

~~~
eli
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...](http://w2.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html)

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 :)

~~~
drusenko
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.

~~~
eli
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?)

~~~
drusenko
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.

------
jurjenh
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...

~~~
drusenko
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.

~~~
jrockway
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.

~~~
drusenko
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.

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

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

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

~~~
drusenko
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.

~~~
jrockway
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.

