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All DMCA notices filed against TorrentFreak in 2019 were bogus (torrentfreak.com)
349 points by MikusR 22 days ago | hide | past | web | favorite | 65 comments



First ty TF for your work.

Is Torrentfreak getting their legal fee's back for these baseless claims? The courts dont seem to like FRCP rule 11 against lawyers as it makes the whole system bad. Perjury is a slap on the write imho. These claims just clog the legal system with more shenanigans. There needs to be some accountability for this baseless claims.


AFAIK DMCA notices don't go through the courts. They're just sent to the site owner, who must comply or file a counter notice. Also, AFAIK there haven't been any prosecutions for people abusing DMCA notices.


> AFAIK DMCA notices don't go through the courts. They're just sent to the site owner, who must comply or file a counter notice.

I think you're mixing two things:

* if a site owner receives a DMCA notice and believes the content is not infringing they can just do nothing and / or tell whoever sent it to get bent, sender may escalate to the courts

* service providers which want to be protected under safe harbour must "act expeditiously to remove purported infringing content" regardless of counter-notices, this is not an either/or situation

Content should be restored 10 to 14 days after the counter-notice is sent to the original claimant unless they engage in legal action, but it must be taken down either way:

> 17 U.S. Code § 512 (c)(1) In general.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

> […]

> 17 U.S. Code § 512 (c)(1)(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

> […]

> 17 U.S. Code § 512 (g)(2)(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

> 17 U.S. Code § 512 (g)(2)(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.


Lack of punishment for bad requests make me wonder if a valid business strategy is DMCAing competition at every turn.

Also makes me wonder if people could DDOS an entire company with DMCA takedown requests.


Also makes me wonder if people could DDOS an entire company with DMCA takedown requests.

Someone should DDOS the web pages of all the American congresscritters and their campaigns and campaign contractors with DMCA notices. That's probably the only way this will get fixed.


Also the sites of their biggest corporate donors.


Someone with some russian friends and or russian VPNs, please do this. You won't face prosecution and it will really cause some change for the better!


You could try. File a few DMCA notices for Disney's top content to their CDN and cloud/datacenter providers. I guess they won't take it down.


17 USC § 512(f), knowingly misrepresenting a DMCA takedown claim can result in liability for damage, attorneys fees, etc.


Except I don't believe it ever has, even in egregious cases.

However, there is a pending test case attempting to give it some teeth. I expect it will be entertaining, no matter how it substantively turns out:

https://www.popehat.com/2019/12/13/randazza-confederates-dou...


Lenz v Universal was fought over this, and has opened the floodgates for these claims. Copyright holders cannot just blanket issue DMCA takedowns without evaluating the supposedly infringing content, including consideration of fair use.

While it’s not an easy case to win, it has teeth - unfortunately they are limited to ACTUAL damages, which does give companies incentive to file misrepresented claims as one cannot easily hire a contingent attorney without the possibility of a statutory windfall.


Yeah, very few enforcements, indeed.

This was the first successful 512(f) verdict back in 2004, though it may still stand nearly alone, and did not yield enough in damages to affect megacorp behavior in the absence of a huge flurry of such lawsuits: https://en.m.wikipedia.org/wiki/Online_Policy_Group_v._Diebo....


No individual will ever pursue this in court because of the cost in time and money and the risk of being declared liable anyway. Corporations with legal departments are certainly capable of pursuing this against individuals.

There's a significant power imbalance here.


Get people with zero assets to write the notice - maybe pay them $20


Probably not a good idea. Our f'd-up legal system would garnish their wages for the rest of their life to pay back the corporate attorneys.


> Also makes me wonder if people could DDOS an entire company with DMCA takedown requests.

Fastest way to make change will probably be using their own game against them and have them lobby on your behalf


I'm sure that if normal people try to do this they will be charged with something generic as fraud.


russian VPN or similar solves this


For a specific example, you can definitely take a company's products off the Chrome Web Store for multiple weeks with a forged DMCA request. Of course, if your company relies on Google to make money you should be expecting this to happen already... Whether you could effectively do this against other marketplaces like the iOS or Android app stores is an interesting question. I suspect those are run better but they'd still have to honor the takedown.


> if a site owner receives a DMCA notice and believes the content is not infringing they can just do nothing and / or tell whoever sent it to get bent, sender may escalate to the courts

The site owner in the case of TF receiving the request is Google, not TF. Google probably automatically acts on the DMCA request and TF has to go through the process of contesting it. So TF can't just sit around and do nothing.


> The site owner in the case of TF receiving the request is Google, not TF.

GP states that the site owner must [take down the content] or send a counter-notice, that’s not true regardless of whether you assume the “site owner” is the service provider or the subscriber, which is why I tried explaining the duties of each.


> Japanese company "유니콘미디어"

That looks like Korean, to me (Unicorn Media).

DMCA seems to have been one of those things that we say "It seemed like such a good idea, at the time" after the fact. I'm certainly waiting to hear positive stories about it.


Perhaps not a "positive" story, but legit dmcas do happen from time to time and seem reasonable enough to me (or at least reasonable enough in a world with copyrights). For example look at this list of dmca notices against wikipedia that wmf actually thought were valid https://commons.wikimedia.org/wiki/Commons:Office_actions/DM... most of them seem reasonable enough to me. (IANAL)

The problem is no effective oversight. Laws without oversight are going to be obviously abused. The DMCA is like if police were responsible to ensure their own warrents are valid.


> The problem is no effective oversight. Laws without oversight are going to be obviously abused.

Lots of laws are privately enforced. DMCA doesn't have to be different.

If you file a false DMCA claim, even if unknowingly, you should be liable for damages. To the platform, for their cost in dealing with your B.S. An to the content owner, for their costs (including time and attorneys fees) and any lost or interrupted revenue.

I'd also make such judgements eligible for summary judgment, provided the damages are less than e.g. $25,000.


In theory, you are liable. It's just difficult to actually enforce that because most people won't actually spend a fortune in legal fees hoping they'll win it back down the road.


Platform holders (Google for example) also generally refuse to give you information on the submitter, which means you can't chase them down in court even if you want to.


My understanding is Google will tell you that info as well as publish it to the Lumen database. If not, you can always subpoena Google for the exact info in court, it only adds a step.


This is true (in my experience) for search results but not for the chrome web store. Sure, you could take Google to court if you have more money and time to waste...


Searching turns up https://adampash.kinja.com/google-just-dmcaed-my-chrome-exte..., which has the text of an email Google sent out that does include the sender information.

You can submit a counter-notice, and if for some reason they didn't give you the required information I'd expect you could contact support and ask for it.


Yeah, they omitted critical information and rejected my attempts to get the information. They also kept the extension down for a month. I contacted a lawyer about this but the costs would have been extravagant, so.

You'll note how in that example, they provide lots of information on the party that filed the DMCA claim. That info is only provided to you if the DMCA notice actually included the info - Google will for some reason process malformed notices that don't contain the required information, which leaves you with no options.

In this case the person filing the claim provided no information except their name (4 japanese kanji) with no further contact information or other details. I was unable to find them on Google, if that was even their name.


That's a different issue from Google not providing the actual notice.

It shouldn't prevent you from filing a counternotice with whatever information was provided - did it?


It did because literally all I got was a name and a URL. I made multiple requests for the info and got nothing. It seems like they can probably get away with doing this unless you're a big company.


I believe similar ramifications should apply to the uploader in the case of a valid DMCA complaint to make this fair.

There are some logistical issues with enforcing that. I admit that upfront as I don't think those are a fruitful topic if you wish to discuss my initial "belief."


> similar ramifications should apply to the uploader in the case of a valid DMCA complaint to make this fair

They do. They're the penalties for copyright infringement. DMCA provides a quick takedown mechanism; other copyright law lifts the rest.


Good point. I guess I've never heard of someone getting penalized for uploading stuff to YouTube for example.


Wouldn't that just be a normal copyright infringement lawsuit?


This one seems to be a reasonable use of DMCA: this is a logo that shouldn't exist, it's never used, but it's on Wikipedia and people are finding it there and attempting to use it for actual purposes, which is confusing. So BP issues a narrow DMCA for only this incorrect version of the logo, leaving all others untouched.

https://foundation.wikimedia.org/wiki/Legal:DMCA_BP_logo


They claim that they did not create the incorrect logo and state that it was created by a third party. Doesn't that entirely invalidate their claim to own copyright over it?


Another problem with the DMCA is that AFAIK, to file a counter notice, you must submit to the jurisdiction of USA courts. For instance, if Bob submits a DMCA takedown notice, and Alice successfully files a DMCA counter-notice, everything is back to how it was before the takedown, except that Alice is now under the jurisdiction of a USA court. That is, either Alice has to accept the takedown, or she has to accept to submit to a foreign country's jurisdiction, even if the original DMCA takedown notice was invalid.


And if you jail enough people at random, you'll eventually jail a percentage of lawbreakers that reflects the actual percentage of people who break the law in your country.


We've used DMCA to request GitHub takedown repos containing our proprietary software.


I've seen DMCAs take down GitHub repos where the code was a clean room reimplementations of proprietary software.


Would you happen to have links?



I know entrepreneurs who have used them to take down phishing sites that mimic real corporate websites and feature the photos of those involved in running the legit company.


Funny example, every time I've had to do this GitHub refused to take down forks based on a bullshit argument that it's impossible to do even though you can just look for matching SHA hashes. I wonder if someone will dismantle them in court for that someday...


Send them a formal complaint, MS own them now, they would take this more seriously/their lawyers will tell them to.


[flagged]


It’s free to download.


So what was the point of taking down the GitHub repo if your software is free to download anyway?


MacOS Catalina is free to download, do you think Apple would be fine with someone posting the source to GitHub?


Every time you use a website with third party content, that's a positive story. Without the DMCA safe harbor many of them would have been sued out of existence by now.


The positive story is that it safe harbored service providers.


A lot of people believed DMCA was bad law, and the thin end of the wedge when it was passed.


Torrent Freak isn't the right one to ask about DMCA notices. They don't pirate themselves. They're careful about it. Where they get their money, I don't know. So of course all DMCA notices filed against them will be bogus.

I'm actually waiting to hear more stories about abuse. When I look around, I see plenty of pirate sites and I'm all but certain they're not paying royalties to the artists. These sites aren't escaping because they're obeying the law, they're escaping because prosecution is so difficult. It's hard to file the right DMCA notices because the sites are such fly-by-night operations.

My guess is that the DMCA doesn't go far enough. I'm all for giving people more rights to fight back against phony DMCA notices. If Torrent Freak wants some treble damages for filing a fake one, I'm all for it. But in return I would like the ability to file quick and deadly DMCA notices on the real pirates.


Once copyright lasts for a reasonable amount of time, then we can talk about making DMCA notices "more deadly". Copyright is a farce, it might as well be infinite in duration right now, because it magically extends when it starts running out on certain IPs.


A year ago, works started entering the public domain again. Today, another batch of works was added, including "Rhapsody in Blue".


It actually does not anymore because there is now sufficient counter-interest from big businesses: https://arstechnica.com/tech-policy/2019/01/a-whole-years-wo...


DMCA itself is bogus. It was deliberately designed to let companies censor: claims are valid by default and nobody has the desire to dispute invalid claims in court. The potential for abuse is a feature.


> this time from Japanese company ‘유니콘미디어”

That does not look like a Japanese company name to me.


If it is, they decided to make their name unintelligible to Japanese speakers for some reason. Maybe it's trendy.


No idea if it's a Japanese company, but I'm pretty sure that's Hangul (Korean) script.


The script is Korean. Judging by Google Translate, the name of the company is actually in English.

For reference, the famous Korean MMO MapleStory (and the Korean company that operates it, Nexon) are actually, technically, headquartered in Japan. There's no particular reason to expect a Japanese company to operate in Japan or target Japanese customers.

Is Uber a Delawarian company or a Californian company?



It seems to me that companies are now (and will be) relying on the long tail of their entertainment investments to justify the cost. Perhaps before it was easier to recoup the investment up front?

What are the chances that these companies genuinely need this sort of draconian copyright law to remain profitable?


Keep in mind "all of" is less than 1 per month, for a site that reports on torrent news and statistics.

2019 was as big a year as any for box office returns and streaming subscription revenue. The only reason you see so many is it costs nothing to send and plenty of companies (as seen by this article) exist to cheaply blast them out via bot.




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