Tough To Punish Those Who File Bogus DMCA Takedowns
from the little-punishment dept
We all know that it's quite common for the DMCA takedown process to be abused to suppress content that the takedown sender did not hold the right to, or which was clearly covered by fair use. Technically, the DMCA has section (f) which makes the notice issuer liable for misrepresentations, and could force them to pay legal fees. But it's difficult to think of many cases where this has been actually used successfully. Often, those caught abusing the DMCA just say "sorry, it was a mistake" and get away with it. Funny, of course, that the same doesn't work in the other direction for those caught infringing on copyrights under the DMCA. Say "sorry, it was a mistake" and you still might owe thousands of dollars.Eric Goldman highlights a case where an ISP tried to use section (f) to go after a bunch of folks who issued questionable DMCA takedowns that were clearly designed to harass a couple of websites (and, at one point, were used to try to take down the entire ISP). The details are a bit convoluted, but basically, a group of people critical of what was being said on a website issued a series of DMCA takedowns to keep the site down every time it came back up following a counternotice. This seems like a perfect case where the takedown issuers should be hit with sanctions of some sort, but the case was dismissed on procedural grounds instead, which seem to be based on a misunderstanding of the DMCA itself.
But, more important is how this case demonstrates how the DMCA is abused not to prevent copyright infringement, but to try to silence speech that someone doesn't like. We've had plenty of discussions about the conflicts between the First Amendment and copyright law, but here is a case where Congress has made a law that is all too often used to stifle speech.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: bogus takedowns, dmca, punishment, takedowns
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Precisely
Even if citizens feel the need for this kind of copyright oversight, at the very least DMCA takedowns should not be based on ALLEGATIONS, but rather legal proofs:
1. that the entity making the allegation has the right to make the allegation (i.e. is the copyroght holder)
2. that the website is actually infringing copyright...
3. ... deliberately.
[ link to this | view in chronology ]
Re: Precisely
I think it is a fundamental issue here. Chances are though it has been brought in this way because they recognise that the courts wouldn't have a chance of coping with what would arise if they had to look at everything. Its been done in the name of expediency.
[ link to this | view in chronology ]
Re: Precisely
[ link to this | view in chronology ]
Re: Precisely
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Those who profit from the current IP system should be the ones charged with keeping it running.
[ link to this | view in chronology ]
Re:
Additionally, the US and it's citizens don't need to be proficient in the techniques as it pertains to legal application, they just need to know it *appears* impartial. Plus, such a notion would certainly benefit and provide a way to prosperity en-masse for the plebeians that formally had exclusive skills in shack-building and spear-fashioning.
[ link to this | view in chronology ]
Re:
You have to wonder why governments are so willing to take on the job of collection agency for media profits.
[ link to this | view in chronology ]
3 Strikes The Other Way
Maybe if the rights holder take the extra 3 minutes to think "Hmmm... do I really want to risk a strike against me for issuing this incredibly weak and vague DMCA claim or should I wait and only complain when it's an actual issue and I'm 100% confident I can win?" we'd see a lot fewer filings.
Excuse me if I don't hold my breath waiting for that law to pass.
[ link to this | view in chronology ]
Re: 3 Strikes The Other Way
But since we don't have a party that actually has the people's interest at heart, I understand your non-breath holding stance.
[ link to this | view in chronology ]
DCMA Takedown Notices...
If you receive one, simply paint the letters "FU" directly onto the letter with a lead-based paint and send it back to the return address. Don't forget to paint a smiley face at the bottom of the letter.
;)
[ link to this | view in chronology ]
http://en.wikipedia.org/wiki/Due_process
Could someone unfairly attacked by an invalid DMCA takedown petition the Supreme Court for a ruling?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
A little naive
You wrote: "when it comes to DMCA the law goes backwards....you are guilty until proven innocent. And the burden is on you to prove your innocence rather than on the other party to prove your guilt. "
That actually is not how the DMCA works. If someone sends a DMCA takedown notice, all you need to do is send a counternotification, and your material goes back up. You aren't burdened to prove your innocence... all you need to do is deny the accusation.
I agree that bogus DMCA notices should be punished more severely, and that many judges lack the spine to sanction bad conduct. However, the DMCA isn't a complete nightmare. Without it, you would have big copyright holders filing lawsuits to enforce their rights -- on a greater scale than we have now. On the other hand, small copyright owners, who lack the resources to do so, would essentially be out of luck.
DMCA needs a stronger 512(f) regime. But, other than that, it is an example of a pretty decent compromise law.
[ link to this | view in chronology ]