Tough To Punish Those Who File Bogus DMCA Takedowns

from the little-punishment dept

Mon, Jan 4th 2010 6:40am — Mike Masnick

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.

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Filed Under: bogus takedowns, dmca, punishment, takedowns

18 Comments

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John Duncan Yoyo (profile), 4 Jan 2010 @ 7:03am

Would this be subject to anti-SLAPP legislation?
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Laurel L. Russwurm (profile), 4 Jan 2010 @ 7:11am

Precisely
why DMCA takedowns should not happen at all. The whole system needs dismantling.

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.
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Call me Al, 4 Jan 2010 @ 7:23am

Re: Precisely
I agree entirely. Its similar to the three strikes proposals in Europe which is also based on allegations rather then legal proof.

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.
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Anonymous Coward, 4 Jan 2010 @ 7:39am

Re: Precisely
There should also be some commercial aspect also added to your proposed litmus test that extends beyond revenue collected from ads.
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Anonymous Coward, 4 Jan 2010 @ 7:50am

It's sort of sad. I like the take-down system. As it is written. Including the section (f). If only there was a technological legal foundation which could find some good test cases and swoop in to forge some favourable judicial history on the issue.
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Anonymous Coward, 4 Jan 2010 @ 8:24am

It's simple. You just create an Intellectual Property Tax. You then use that tax to fund a government agency that determines whether a DMCA takedown should occur. As more DMCA takedowns are requested, IP Taxes will have to go up to cover the costs.

Those who profit from the current IP system should be the ones charged with keeping it running.
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Tyanna, 4 Jan 2010 @ 8:52am

Re: Precisely
Exactly. For some reason, 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. If I said 'John Smith stole $100 from me!' would he be arrested and put in jail until he proved he didn't? No. Would I get in trouble for falsely accusing? Yes. DMCA makes no sense what so ever, and it really makes me mad when I see something taken down on youtube or a site that has up and vanished all because of an allegation.
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Anonymous Coward, 4 Jan 2010 @ 8:55am

Re:
Absolutely. This is why from commencement, the Government should take a focused, cost-effect approach to addressing this US-specific problem. I suggest they join the ranks of other US companies and wholly delegate, at minimum, the claims department to India. This way, as the standard of living in India (with it's population of 1.1B) increases, the overhead costs can increase proportionately. This will postpone the problem at least a decade before it needs to be properly addressed within US borders.

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.
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Marcus Carab (profile), 4 Jan 2010 @ 9:14am

Re:
I imagine it only would if it were being brought to court as a lawsuit, and the DMCA comes before that step. The issue is that the anti-slappish language that's already in the DMCA doesn't seem to be very effective.
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Oliver Wendell Jones (profile), 4 Jan 2010 @ 9:30am

3 Strikes The Other Way
What if we proposed to the copyright holders that we want to implement a 180° 3 Strikes Law - You can make 3 faulty DMCA claims before you lose your right to make further complaints.

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.
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ChurchHatesTucker (profile), 4 Jan 2010 @ 9:39am

Re: 3 Strikes The Other Way
Yeah, Goose meet Gander.

But since we don't have a party that actually has the people's interest at heart, I understand your non-breath holding stance.
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Daemon_ZOGG (profile), 4 Jan 2010 @ 9:50am

DCMA Takedown Notices...
There is one way to respond to bogus 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.
;)
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Anonymous Coward, 4 Jan 2010 @ 1:08pm

Where is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result?
http://en.wikipedia.org/wiki/Due_process

Could someone unfairly attacked by an invalid DMCA takedown petition the Supreme Court for a ruling?
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John Duncan Yoyo (profile), 4 Jan 2010 @ 2:05pm

Re:
I consider my free speech right to be a valuable commodity as evidenced the existence of anti-SLAPP laws. If someone wrongly deprives me of my platform for said speech by wrongly accusing me of a DMCA violation they are depriving me of my rights and I should be able to sue for damages in a civil court. It the party in question shows a consistent pattern of wrongly depriving people of these rights it should open them to a class action law suit.
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Laurel L. Russwurm (profile), 4 Jan 2010 @ 2:22pm

Re:
That's how it USED to work... copyright infringement (bootlegging) was not a criminal offense... Disney et all ran around ferreting it out and enforcing it.

You have to wonder why governments are so willing to take on the job of collection agency for media profits.
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Nick Dynice (profile), 4 Jan 2010 @ 8:58pm

I propose people start putting this on their sites:

Under Federal Law, The Digital Millennium Copyright act, Title II, § 512(f), 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.

Any trademarks mentioned herein are noncommercial and/or are of nominative fair use including parody, griping, or reporting, and are protected by the First Amendment to the United States Constitution. You are hereby informed that we do not suggest the mark-owner has endorsed or sponsored our site unless explicitly noted otherwise.

http://www.fbi.gov/ipr

http://www4.law.cornell.edu/uscode/17/512.html#f

And then we need one of those special emblem like the copyright lobby bought themselves, the FBI Anti-Piracy Warning.
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Nick Dynice (profile), 4 Jan 2010 @ 8:59pm

Re:
wops, the link to fbi was for reference to what I said at the end, and would not be included in the warning. Mike, please edit if you can.
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Marc J. Randazza, 8 Jan 2010 @ 6:56am

A little naive
Tyanna,

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.
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