I really hope that DMCA at least be modified to add a requirement to submit a fee that can be recovered in case of success. Or maybe not recovered at all and cover the cost of investigation. It might help combat the bogus claims. As for the real ones, that's should be part of the cost of doing business. But the current situation that it is almost zero cost will only encourage more bogus and vague claims.
Does torrentfreak have any legal recourse? If the notices keep saying the information is accurate under penalty of perjury, when clearly its not, it seems like they should be able to do something...
the notices keep saying the information is accurate under penalty of perjury, when clearly its not
The part which is "accurate under penalty of perjury" is only that "the complaining party is authorized to act on behalf of the owner [...]"; it excludes the part which says "the information in the notification is accurate" from that.
Yes, it means that they can lie as much as they want on the "you are violating my copyright" part as long as they are truthful when saying "this copyright is mine".
Without getting the copyright is mine part how can they claim authorized or ownership?
there's two independent statements:
- i am authorized by the owner of this piece of copyrighted work
- this copyrighted work appears at this url.
the first needs to be true under penalty of perjury. the second can be as false as you want with no repercussions.
But what is "this piece of copyrighted work"?
If they're filing a DMCA claim then it indicates that (a part of) the video they're filing a claim against is "this copyrighted work".
You don't file a dmca takedown against a video, you file against a URL. All you're claiming is that your copyrighted content is somewhere in that url.
But even if you were filing against a video directly, it doesn't mean you're claiming ownership of the video. It could just be one song on the soundtrack, Or a still photo shown without authorization, Or one of the actor's tattoos (seriously) that is the subject of your claim.
They're claiming a specific right is infringed, and although they are frequently completely incorrect about the infringement, they still need to be correct about the right they're claiming about.
Chewbacca is a Wookie, and the claimant is authorised to submit infringement notifications. Neither fact is necessarily relevant to the target of the notification.
So, in that case, you could then file a bunch of fraudlent DMCA notices against them in return. If there is no remedy for this, then it's not like someone couldn't do this to them also?
The complainers are not publishers themselves, there's nothing to take down.
Does torrentfreak have any legal recourse?
Penalty of perjury is criminal. We need a state AG to make an example out of someone. These notices are signed by a natural person, right?
Earlier comments covered this, but legal recourse here is only feasible if the party filing the DMCA notice isn't actually authorized to represent the copyright holder. The validity of the copyright infringement claim is the purpose of the lawsuit, an QG can't go after you after the fact for having lost the case.
I think it goes further then legal recourse
If you really think that a market environment should be able to fix this abuse of the legal system, finding a way through which torrentfreak would automatically profit from this should be a great goal to work towards.
They make excellent bait for precedent cases to to fix a broken system.
What's under penalty of perjury is the right to file a claim about the work allegedly infringed, rather than the accuracy of the reported content, which merely needs to be "a good faith belief".
If you publish something you hold copyright on, and someone makes an unauthorised copy, I can't submit a DMCA claim against the copy without your authorisation. Even if the claim would be 100% valid were you to submit it, the courts may enforce that only you and your agents may actually make that submission. On the other hand, it's quite hard to prove that someone is acting in bad faith, rather than being earnest but entirely incompetent.
The DMCA is complete and utter garbage from its inception to its execution. The fact is that most of the time it seems to be used in a weaponized form because there are zero repercussions for being incorrect or failing to do due diligence before sending one off makes this total garbage.
I am not unsympathetic to copyright holders but I have no love for this 100 plus year copyright nonsense. There needs to be teeth behind it when a false DMCA is sent because without that places are simply wasting money and draining resources from places they don't like. It's great and all that Google has deep pockets and can afford to review these things but it's still a waste of their time and a waste of their money and since Google doesn't print money out of thin air that comes from their customers.
The way to fix the DMCA is to actually make this a document that must be filed with the courts. Require a lawyer to sign off on these documents file them with the courts and when they are false documents we're due diligence has not been done to ascertain if there was a true copyright violation or not we can start despairing lawyers and having them held in contempt of court. Eventually lawyers will stop doing this nonsense.
I have always said a fraudulent DMCA claim should be treated the same a show the FCC treats a radio station fraudulently broadcasting someone else's call sign. The fine should be $10k minimum, especially when the strike attempt is against something in the public domain.
And a good portion of that fine should be sent to the targeted party.
That could create some wrong incentives.
But the targeted party must have an easy way to painlessly dismiss a notice.
Start spamming senators with dmca takedowns for funding pitch videos?
This will produce rapid action though unfortunately not the kind you're aiming for.
If it starts a precedent, and someone was willing to take the hit, then this could be a way of getting back at fraudulent DMCA takedowns.
The DMCA is complete and utter garbage from its inception to its execution.
The safe harbor provisions for providers hosting user-created content are great, IMO. People forget that is also part of the DMCA.
I may sound like a broken record but copyright needs reform.
It does not fulfill its purpose and DMCA is just one symptom of many other issues that stem from the steaming pile of garbage that is copyright in the 21st century.
edit: typo
What do you believe is the purpose of copyright law? Genuine question, I’m curious to hear your take.
Genuine question, I’m curious to hear your take.
In my experience, when users say this they're neither genuine nor curious but I'll bite.
https://www.archives.gov/founding-docs/constitution-transcri...
The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
I believe it is to promote the progress of science and useful arts and I think that the way modern copyright works runs counter to this foundational goal.
You said it better than I ever could have!
AI so close to breaking the current copyright and many of us are very excited to see this finally happen! We just need not to snooze on the replacement and not fall for copyright propaganda which is already invading social media.
I went through your comments and I appreciate your service of raising this as an issue.
Someone needs to file DMCA notices for the big corpo stuff. Do it as a big swarm and get the whole websites down. Only then will there be actual action to reforming it.
If anyone is curious, currently Yout v RIAA[0] is awaiting oral arguments in the US 2nd circuit court of appeals, Yout having lost in district court. This case centers around the DMCA circumvention notice's sent by the RIAA
[0] https://www.courtlistener.com/docket/66697744/yout-llc-v-rec...
I'm not sure there is a fee which is both large enough it significantly deters bad claims while also being small enough to be different than saying nobody can afford to defend their works on the internet via DMCA given the scale. Even if you have 90% accuracy in claims if you have to put out 10,000 claims in a year that's 1 million you have to escrow with the expected loss of 100,000 despite rarely being wrong. And you may well need to do significantly more than 10,000 claims per year given the number of sites and users uploading and re-sharing content. If it were just a token value of 1 dollar or something then you're back to the largest corporations being able to file a million bogus complaints as the cost of doing business.
Absent a balanced number this would ultimately turn into another debate about the place of the DMCA itself.
“Even if you have 90% accuracy”???
You either have 100% certainty you are the rights holder and 100% accuracy, or you’re abusing the system. Full stop.
Give each rightsholder ten freebies per platform or whatever, but they should sure as hell be 100% accurate.
Sorry, but how can you be 100% certain in a system where fair use exists?
Are fair use exclusions being considered as bogus? When I hear bogus I assume that means they never had any rights over the content to begin with.
Two people can reasonably disagree on who owns the rights to a derivative work, can't they?
They can but that isn't what is happening according to the article.
I don't consider that a reasonable disagreement, I consider that a bogus claim.
How can you be confident it's a bogus claim? If, for example, the "entirely different domain" provided a TorrentFreak email address as their contact info (presumably along with all the other assets they copied from TorrentFreak) - that seems like a perfectly reasonable mistake.
If they made the effort to remove that information why assume they left the contact info?
Either way this absolutely wasn't a case of fair use. They sent the claims to the wrong people.
I'm aware, but I don't see how that's relevant to these comments. Someone proposed a system to help with this problem (requiring a fee to file a takedown), and now we're discussing the issues with such a system. Those issues extend beyond the cases discussed in the article.
Fair use is an affirmative defense — you don’t get to make that claim until you’re in court (and even then, a judge has to sign off on the claim). And making a fair use defense ipso facto is an admission of using the work without permission (and thus making the preceding DMCA takedown valid).
Not quite right. Using work without permission is not the same as infringing on the copyright on the work, and a DMCA is a claim of infringement. Fair use can only be used as an affirmative defense, as you noted; only a court decides whether a use of a copyrighted work is fair use. But formally, fair use is not infringement according to the Ninth Circuit in Lenz v. Universal Music Corp. (2015) [1]:
Not that the Lenz ruling helped very much in practice. To meet the Lenz standard, the sender of the DMCA notice can claim in court that they believed in good faith that the use of the copyrighted work was not fair use. The only part of the initial DMCA notice that the sender writes under penalty of perjury is the claim of being the copyright holder or someone authorized to send the notice on behalf of the copyright holder [2]:
[omitted]
(vi)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.
In contrast, a party sending a counter notice - which they might be too intimidated to do in the first place, and otherwise happens before the rightsholder initiates court precedings - must dispute the initial DMCA notice under penalty of perjury [2]:
[omitted]
The safest response by far for the recipient of the DMCA notice is to resign from contesting it i.e. let the service provider permanently remove the material.
[1] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.
[2] https://www.law.cornell.edu/uscode/text/17/512
If I own Star Wars, and someone does a review on YT that has many clips from it, I am 100% certain I'm the rights owner and hold copyright on those clips. I don't know if it's fair use, but that's not what the DMCA requires.
Now, if I submit a DMCA notice against a Star Trek review (that has no Star Wars clips), that's an entirely different thing.
I think we should be extremely harsh on the latter.
The categorization that you propose also cannot be 100% accurate, probably not even 99.9% accurate.
Why not? Are we to believe copyright owners can't reliably watch a video (or whatever) and know if it contains any of their content?
Again, this is separate from the fair use question. I'm saying if the owner of Star Wars files a DMCA notice against some guy reading Hamlet in an empty room, we should have little patience for that.
Because... of human error? Is there something unclear about the fact that humans are not perfect machines of categorization and labelling?
Humans indeed make errors; I'm suggesting that the penalty for utterly false DMCA notices (i.e. saying my Hamlet monologue infringes the Star Wars copyright) be significant enough that rights holders put a modicum of effort into not submitting notices with errors.
So if you understand 'Why not?' then why ask a rhetorical question like that in previous comment?
It seems like it could only confuse the discussion, and passing readers, and not help in any way.
Yes, humans make mistakes, and we improve by creating strong disincentives for mistakes.
I don't think that's reasonable.
If you're a tiny rights holder, you may have produced a single song and are trying to make sure others pay you for use - but you may not be able to afford or understand what legal review you need.
If you're a major rights holder, you may have so much content to protect that is so wildly popular it is impossible to review manually. But automated review with 100% accuracy is not possible.
DMCA in many cases is not fair, but I don't think we as a global society have much of a shared view of how to handle digital creative content. Ease of digital replication doesn't match how much we generally value creative content.
Automated review doesn't need to be 100% accurate. You don't actually need to automatically stop 12 year Olds from using your music in the background of their minecraft video to turn a profit.
Manually review cases where it's actually worthwhile.
To clarify, whether or not you can as an organization turn a profit, is whether or not you get to own a piece of IP? How much profit is an owner of IP allowed to have? How much should an artist get paid? I don't think I could ever limit/define that.
Maybe companies shouldn't own copyright to a million different IPs then? If you don't care enough about it to manually review it then you shouldn't get to take it down.
Somehow once you get to a certain scale it becomes its own defense. "Oh we can't police that, we're really just that big, don't you know". But the small guys better watch out, no excuses for them.
If manual review costs more than you're benefitting from sending out reviewed infringement notifications, then that's a pretty strong sign that the whole thing is just pointless busywork.
Major rights holders should take action in the cases where not taking action will cost them more money than manual review. Right now they are spamming garbage notices out and offloading all cost to the content sources receiving their notices (websites, content creators, etc.). They should have to do manual review and be more selective about when to take action. There /should/ be a penalty for fraudulent takedown notices. Using an automated process is not an excuse.
Ah but the whole argument against internet piracy is that it is costing creators so much money in lost sales etc.
So even a small time rights holder who is losing sales (right? Right? Because that is what this is all about right?) should be happy to pay 100USD or whatever to ensure that they get all those thousands and thousands of lost sales that supposedly they lose from pirates.
Would I pay $10,000 to get a prospective $20,000 of my income secured? Yeah, duh, but I'm sure as hell not going to be happy about it.
How did the $100 turn into #10,000?
100 separate takedown notices I presume
To those 10% you were absolutely wrong. Why should they suffer because you were "mostly right" with other people?
I don't think you get out of this with 0 suffering for everyone. That'd require some utopian method of figuring all of this out completely automatically with no errors for free. It's just not a realistic bar to measure either side on.
As for amount of suffering an actual DMCA counter notice is an extremely easy thing to provide. What sites like e.g. YouTube do instead via backdoor agreements with IP holders outside the regulatory structure is where the real inconvenience comes from. That said, I wouldn't mind a bit more shift in general to make things slightly more difficult for copyright owners though. Just not as major a one as saying 100% of claims need to be valid from the get go or it's not viable for copyright holders.
Certainly, but false positives here mean actual infringement of a person's rights to protect someone else from potential infringement. I'm not sure how that is justifiable.
I'm pretty sure $100 per claimed violation is enough to 1) keep large companies from continuing to splattershot claims against sites and 2) small enough that it _shouldn't_ hurt smaller orgs or even individuals who probably have something near 100% claim success rates, if they do manual takedowns. Again, remembering they recover their "deposit" if the claim was successful.
That's a fair opinion and I'd be supportive of trying it if everyone could agree on such a number. I'm just less optimistic it'll work out but status quo isn't all that great either so trying something people think could work would be better than doing nothing in my book, despite my doubt on it.
Keep in mind even if you have and ideal 100% success rate on claims, recovering 100% of the deposits, it's still going to be thousands and thousands of dollars which used to be liquid now relegated to holding up the revolving door claims processing fees. Anything less than 100% just starts to make it an actual money pit instead of a financial annoyance.
But we’re talking about an article where 100% of the notices were bogus. That’s a long way away from this hypothetical 90%…
First one is free and if you are correct another free request is available to you.
The NZ copyright strike/3 strike internet cancellation law has a fee of $250 or claim. As such it's hardly used anymore.
I think it makes more sense to disqualify abusers from the entire takedown system. The DMCA takedown process takes a guilty-until-proven-otherwise approach, and companies like Markscan from the article can clearly not be trusted with that power. After maybe 3 false takedowns the receiver should be allowed to assume anything they send is bullshit.
There should also be consequences for copyright owners choosing to be represented by a large number of such abusers, but that's a lot more complicated and would require more due process.
Abusers of DMCA should just have the IP in question automatically reclassified as Public Domain. Problem solved.
This may sound extreme (and it kind of is), but companies send bogus legal threats under penalty of perjury and it's time to put the "magic of incentives" at work here. IP protection is not a constitutional right. You abuse it you lose it.
Do the "abusers" tend to be the actual owners though? If not, there's no actual IP to take away from them.
If not implemented carefully, this could incentivize shell games.
Also I could totally seeing this getting abused with competitors posting fake DMCA for one’s content to get their competition public domained.
That seems like you’d be committing perjury, which the victim could prove easily by showing there’s no authorization.
If you submit a DMCA notice without authorization, then it’s perjury.
If you submit one with authorization, then the authorizing party should put their IP as collateral.
Does matter whether the abusers are the owners themselves or merely representative agents of that the owners have hired?
I don't think that it does.
Per the definition, yes. A DMCA notice submitted by someone other than the copyright owner or someone acting on their behalf is invalid.
Some penalty is clearly appropriate, but IP protection is part of the constitution.
Do you have a source for that? I don't see anything in the US constitution being remotely close to Intellectual Property protection. It does have several protection on property, but I'm pretty sure it's talking about the physical kind.
Article I, Section 8, Clause 8:
https://constitution.congress.gov/browse/article-1/section-8...
That is a power granted to congress, not a constitutional right.
That is, the constitution grants Congress the authority to create a legislative IP right. It does not create a constitutional IP right.
You can tell, because Congress could say: “stuff it, no IP rights for anyone. Copyright no longer exists for new works”, and that would be constitutional.
If the legislature wanted to protect IP differently, it is at their prerogative though.
For instance, if they think the value of IP to promoting the arts and sciences is reduced significantly by IP claimants committing perjury and abusing other people's freedom of expression, and that the situation needs a remedy.
There's nothing saying it has to be this way, merely that granting rights is a thing that can be done. Y'all can find this section of the constitution I'm sure, and it's dull but short! This is super up to the legislature, otherwise how would they have passed the DMCA in the first place? Of course they could make a law to revoke IP for any kind of thing they decide they need to -- like for national security:
"The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
That's what I had in mind as the consequences in the last paragraph. I'm not sure what the process for that reclassification would look like. I think it does need some level of actual confirmation that the copyright owner is responsible for the abuse, while ignoring of abusers by a platform is easy and decentralized.
Why do copyright holders get due process but not accused infringers?
Because they are not being prosecuted for a crime, and are not being subject to legal penalties. They are not facing jail time or a legal judgement. The platform just takes them down.
I’m not saying this is right, just that this is the reason.
False. A takedown can be very costly in terms of lost income for the victim of the false takedown. It is a legally prescribed process.
Imagine if you could DMCA-strike a toilet - your toilet is pirated and is being dismantled immediately.
Must. Not. Make. Joke. About. Situation.
The ultimate answer is because copyright holders have money and spent a fare bit of it on lobbyists.
Copyright holders are organized, e.g. MPAA/RIAA, and motivated (money moves ya). Content consumers are disorganized and little motivated.
The problem with this idea is that there is no "system" you literally just send an email/letter/whatever claiming that you're the rightsholder.
Well, it starts via such a notice. You can just as easily send a counter notice. The actual violation process occurs in the courts though and that means you could never actually do anything anymore even if you were spamming out notices without getting caught.
The party receiving the notice would have to be able to verify that the filing party actually exists and is in fact filing the notice.
If the purpose of filing the notice was griefing I can create firstname.lastname@freeemailprovider.tld email accounts by the dozen and start sending.
Your proposal only helps with lazy automated notices / ones that are sent by companies aggressive and/or incompetent beyond reason.
I'd rather have statutory damages somewhere in 5 digits range for filing obviously ridiculous notice, just like there is one for copyright violations.
To a small-fry person having their copyright violated, having to pay an upfront fee/deposit for each violating site could be onerous.
If we're going to go to filing fees/deposits, how about make the remedy be a fast-track way for the violated person to seek damages, not just play takedown whack-a-mole?
Along with the good suggestions by the other replies, let's also take into account actual DMCA takedown activity, and make sure we are not optimizing for an edge case. I would guess that "rich company spamming bogus notices" is far and away the most frequent case, followed maybe by "rich company filing legitimate notices" followed in the far distance by "small fry filing a legitimate notice." There are probably multiple orders of magnitude more bogus notices from companies than legit ones from small fries.
The DMCA is a weapon that mainly large, rich companies use to beat up mainly small, relatively powerless end-users. That's what needs to be corrected.
I'd also argue that a large portion of the US legal system is set up to facilitate this "big&rich beating up on small&poor" behavior, but that's a topic for a different day.
You are guessing wrong.
What an excellent rebuttal. Care to provide some sauce?
"I think it's X with no evidence"
"I think it's Y with no evidence"
"Woah woah there, how dare you disagree with the groupthink, are you prepared to cite some sources?"
Why does X but not Y get to be presumed true until proven otherwise? Because we really want X to be true okayy.
That is not how it went. The first person took a guess, and the second implied information that we don't have:
"I guess X"
"You are guessing wrong"
Yes! Now, what was asserted without evidence?
This sounds like the DMCA is solely a harm to mitigate?
Is using the DMCA to legitimately defend the copyrights of small-fries too much of an edge case?
I'm saying it should be measured to see, before proposing changes. I'd love to learn that a majority of DMCA notices are individual artists taking down legitimate infringement. Somehow I highly doubt that's the case.
I'm more idealistic about some things than the reality, and I like to think that US law doesn't do "customer support" like a well-known FAANG. (Where it's just good business to let some fraction of a percent of people be wrongly locked out of their accounts, rather than invest in covering those edge cases.)
https://en.wikipedia.org/wiki/File:EqualJusticeUnderLaw.jpg
Defending copyrights held by small fry is usually of negative value, which is why they do their best to give all the material away themselves. They want the exposure more.
The counterfactual to making an illicit copy of Thriller might conceivably be that you pay for an official copy. The counterfactual to making an illicit copy of Everybody Needs A Robot is not that you pay for an official copy. It's that you go do something else, which is worse for the artist.
A one dollar fee would be entirely affordable to a "small fry person", while making automated "report anything the same color as our copyright" abuse untenable.
There are ways to set up classification schemes for fee payments: a small fry has to pay a $1. A big fry has to pay an escalating value. Sort of like truckers have to keep much higher insurance policy values than your typical personal auto driver.
If we can define small-fry then we can drop the fee for those entities.
I would like the same thing for international domain dispute process.
I believe currently it's a $1000 non-refundable fee to submit a domain claim, e.g. you believe someone else acquired a domain knowing you owned the copyright, and then try to take it from you without having to buy it from you - whether it is or isn't for sale.
$1000 cost + cost of whatever a bad-unethical lawyer charges to try to steal a domain doesn't cover the costs of time spent of the person you're falsely accusing - regardless if they hired a lawyer to get a proper legal defense - making their unrecoverable costs even higher - a claim submitted with no evidence, stuffed with repeated non-sense garbage that should have automatically been denied.
If I wasn't dealing with other shit then I would have filed a complaint against the lawyer in the European country who initiated the wrongful claim-attack-theft attempt.
Wait, what? Domains can be stolen?
In some very special cases, yes, https://www.sfgate.com/news/article/Sex-com-A-URL-All-Crime-.... But I assume parent comment is referring to reverse domain hijacking, which is a UDRP process, related to trademark not copyright.
Right, I misspoke saying copyright.
The fee should be enough to be meaningful - say, $100 or so. If the claim turns out to be wrong, the fee should go to the accused party.
If an organization files many claims that turn out to be false, they should be forbidden from filing further claims for a year, or face massive fines.
If each one is $100 upfront for them and in my pocket whenever I prove them bogus, all I can say is, Bring it on!!!
Maybe the party making the DMCA claim must provide verifiable identifying info for themselves, sufficient to locate and prosecute them, if they're suspected of knowingly or negligently making a false claim.
The law is working exactly as intended. The copyright lobby is very powerful. If you look at the legislation being proposed since 2010, it has primarily been to strengthen the DMCA. Though Google, Reddit, Meta, Wikipedia, etc. were successful in organizing opposition to these bills, they have no incentive to lobby for the repeal of the DMCA.