Two Copywrongs Don't Make A Right, But We Still Need A Way To Combat False Takedown Notices

from the because-they-wrote-the-laws dept

Tue, Sep 11th 2012 9:18am — Mike Masnick

We've noted plenty of examples of completely bogus takedowns due to copyright claims -- including some pretty serious ones. Over at TorrentFreak, they're asking if such bogus takedowns should be punished in some manner, and they suggest a three strikes system, in which after the third strike, parties are not allowed to file any more takedowns for a month. I'm not sure such a system would really be that productive, but it does seem that something should be done. I know that whenever we talk about bogus takedowns, people point to the "penalty of perjury" language found in DMCA takedown notices. But that's usually a misreading of what the perjury notices actually say. The "penalty of perjury" part only needs to apply to the claim that the party writing the letter is authorized to act on behalf of the rightsholder. That's it. It does not need to apply to the claim that the content is actually infringing, even though most people interpret the notice to read that way. Separately, when the takedowns happen via automated systems like YouTube's ContentID, or via government action, like ICE's domain seizures, the perjury claims have no bearing at all, since they happen outside of the DMCA entirely.

So what can or should be done in those situations? At one point, some Brazilian officials had suggested effectively putting the public domain and fair use on par with copyright -- and thus equalizing the punishments for violating either. There is some poetic justice in such a setup. Given the insanity of today's statutory damages rates (which can lead to up to $150,000 for infringement of a single item), would it be reasonable to then say if you take down something incorrectly, you are opening yourselves up to similar damages?

Defenders of copyright would argue that's way too harsh, though they'd do so without any hint of realization that those penalties are way too harsh for today's infringement as well. Besides, they wouldn't have to worry if they only issue proper takedowns.

Of course, the problem with that is that you're effectively creating a "two wrongs" situation, rather than fixing the bad situation. You could argue that if you set it up so that the two sides had to be in lockstep, then that might actually encourage copyright holders to be more willing to come to the table to reduce statutory damages to more reasonable levels, though this also explains why they'd fight as hard as they could against any such proposal.

In the end, I really don't know what the proper response is -- but it does seem clear that the ability to falsely censor content online, thanks to the DMCA and bogus notices and automated systems, is a real problem that needs to be fixed.

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Filed Under: bogus takedowns, dmca, free speech, perjury, punishment, statutory damages, takedowns

49 Comments

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Reader Comments

The First Word

“

Simple. Keep the system as is, but if a copyright/patent claim is filed...and successfully challenged, the original holder of the copyright/patent instantly loses it. It immediately enters the public domain, rendering everyone able to utilize it without lawsuit.

If a company cannot use its copyrights/patents responsibly, it does not deserve to own them. Meanwhile, flagrant instances of copyright infringement (IE, copying an author's book word for word and publishing it as your own) would still be punishable.

Because of the risk of losing their copyright/patents entirely, companies would do a LOT of research into potential infringers and ONLY submit a claim if they think they could realistically win.

—Pinstar

”

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btr1701 (profile), 11 Sep 2012 @ 9:29am

Mirrored Damages
I agree with the Brazilians. If Big Copy wants to wield their rights like a club, and demand respect for their IP to the point of such ridiculous damage awards, then they should be required to respect the IP of others in the same manner, and face the same penalties for failing to do so.

I'm not sure how they could even rationally argue against it, without devolving into some variation of "But we're the big companies-- don't you realize that copyright law is only supposed to *benefit* us, not harm us!"
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:Lobo Santo (profile), 11 Sep 2012 @ 9:30am

Bogusity
I still say we use their (stupid) "3 strikes" mentality against them.

3 provably false DMCA notices and the party responsible for sending said bogus DMCA notices loses the privilege of sending such notices for 1 year.
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surfer (profile), 11 Sep 2012 @ 9:31am

absoutely
This is a great idea. Lockstep punishments on both sides. 3 strikes for false take downs, and you get your ability banned, repeat infringements should get a graduated system where if you are, not convicted, but alleged to employ a DMCA take down more than 3 times, the punishment increases. And the end-users are allowed to do the alleging, no proof needed. If found allegedly infringing on the DMCA system more than 9 times, there will be a $150,000 fine for each additional erroneous take down request. Eventually removing your ability to send DMCA take downs at all, period.
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Tunnen (profile), 11 Sep 2012 @ 9:35am

Two wrongs may not make a right, but three lefts will... =P
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The Infamous Joe (profile), 11 Sep 2012 @ 9:36am

Too simple?
If you want to get rid of incorrect takedowns, do the sensible thing and make non-commercial copyright infringement legal.
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Anonymous Coward, 11 Sep 2012 @ 9:39am

Re: absoutely
I think you're being too kind. You don't get a certain amount of infringement strikes before you start becoming liable for statutory damages. You can be sued for the $150,000 for your very first offense. I don't see why it should be more lenient for the DMCA abusers.
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The eejit (profile), 11 Sep 2012 @ 9:41am

Re: Bogusity
Nope, they should just have all works they hold made PD, because the company wiull have provent hat they cannot be trusted to make a genuine notice.
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surfer (profile), 11 Sep 2012 @ 9:42am

Re: Re: absoutely
then fair is fair, $150,000 fine for the first offense, and each and every subsequent offense. Throttle DMCA notices from 10,000 a week, to 10. Should the behaviour continue, no DMCA notices for a year and possible jail time for the CEO of the company, after all, corporations are people too.
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Anonymous Coward, 11 Sep 2012 @ 9:42am

Re: Bogusity
There would need to be some sort of way to prevent agents & shell companies being used to shield DMCA abusers.
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Scott, 11 Sep 2012 @ 9:42am

Re: Bogusity
In that rate with companies that a notorious for making false claims the be banned for eternity.
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Anonymous Coward, 11 Sep 2012 @ 9:49am

Just charge $25 a pop to process a takedown notice, make it so others can't sue over infringing content because a company did not proactively filter, and no Youtube-style automated takedowns (actual law(s) for this stuff, please).

Of course, we could just repeal the DMCA...

Not like any of this stuff will happen any time soon, if at all, of course.
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Anonymous Coward, 11 Sep 2012 @ 9:50am

Re: Bogusity
Please, although change that "1 year" to "permanently".
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GMacGuffin (profile), 11 Sep 2012 @ 9:54am

Start with Giving the DMCA Misuse Section Teeth
There is a section of the DMCA allowing for damages, costs and attorney fees for "knowingly materially misrepresent[ing]" that material is infringing. 17 USC �512(f)

Problem is that courts have interpreted that to require a showing of something like "subjective intent" which is nearly impossible to prove (especially if the actor is a machine), so victimized plaintiffs rarely (if ever) win on a claim for DMCA abuse.

All we need is for Congress to give it some teeth: "objective" intent, for starters. Easy. Right? Sure, Congress is just chomping at the bit to charge through the phalanx of **AA lobbyists to change a statute in a way that may help the huddled masses.
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Scott, 11 Sep 2012 @ 10:05am

Re: Re: Bogusity
Ditto to that.
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Anonymous Coward, 11 Sep 2012 @ 10:05am

Why damages for infringement but fines for false take downs?

I say lets get damages for false take downs and then get some fair-use troll companies started and just build up an entire economy of gaming the algorithms. TDEO (take down engine optimization)
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Joe, 11 Sep 2012 @ 10:08am

After 3 bad takedown requests in a given period, you are flagged and any requests made for the next 6 months must be manually reviewed by a lawyer and the cost passed on. If you don't do due diligence, we will and then charge you for it.

A fee to file system would build a monstrosity. Companies would have a new revenue stream and look to grow that by encouraging more takedown requests. Bad idea.

Moving away from a notice and takedown system to a notice and notice system would help also.
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gorehound (profile), 11 Sep 2012 @ 10:08am

Re: Mirrored Damages
I would agree to use a Three Strikes system against them.I hate the Big Content Industry and Copyright Maximalists.I am in full support of doing to them what they do to others.
Soon we will also have a 6 Strikes System against us the Consumers.
Two Fingers in the Air against Big Content.
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Anonymous Coward, 11 Sep 2012 @ 10:15am

considering how the entertainment industries think that a $25 Aus fee for filing a takedown is excessive, please tell me how those same industries can think $150,000 fines to ordinary members of the public can in any way be justified? the only way is to make things fair. either keep the fines as they are and apply them to false takedowns as well or remove all this copyright shit completely from ordinary people. if a gang of criminals is producing and selling multiple copies of music and movies, then that's a totally different issue. trouble is, that would mean the industries actually having to take some personal risks of retaliation as well as financial. caning the public who are normally unable to fight back, is a cowards way but a much safer bet!
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Ninja (profile), 11 Sep 2012 @ 10:15am

Seriously, we need rewritten copyright laws, not new laws to define public domain that will fuck up the process even more. And those laws should have a few particularities such as having an "expiration date" (as in you'd have to review them every 5 years or less if a great disruption appears in the market) and renewals or changes should NOT be retroactive (as in: extensions will not benefit any existing work for instance).

That said, the law should CLEARLY define what's public domain, fair use and derivative works. In my opinion a derivative work doesn't fit in the fair use clause. Fair use is when you use a work on a charity event, when an average joe (not our obnoxious troll) uses the song to make a slide show of the kids pictures or as a background to his video walkthrough etc (I mean, fair use should pretty much encompass all non-commercial use including but not limited to sharing with friends/family).

An example of derivative work would be a fan fiction. Stories based on the original work should have some protection and the extent of this protection would need to be discussed.

It should introduce a public consultation system that would explicitly show who is the copyright owner (NOT holder, the rights should belong to the original creator, not a damn label or studio but the crew involved). This would need more discussion to see how it would work.

Summarizing, we need to re-write copyright to clearly define the terms and players. And it should not be static nor stacked in favor of a determined industry. Sorry if I was prolix in this comment.
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btr1701 (profile), 11 Sep 2012 @ 10:17am

Re:
> Two wrongs may not make a right, but three
> lefts will...

I never got that joke. Doesn't making three lefts just put you back in your original starting place?
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Pinstar, 11 Sep 2012 @ 10:20am

Simple. Keep the system as is, but if a copyright/patent claim is filed...and successfully challenged, the original holder of the copyright/patent instantly loses it. It immediately enters the public domain, rendering everyone able to utilize it without lawsuit.

If a company cannot use its copyrights/patents responsibly, it does not deserve to own them. Meanwhile, flagrant instances of copyright infringement (IE, copying an author's book word for word and publishing it as your own) would still be punishable.

Because of the risk of losing their copyright/patents entirely, companies would do a LOT of research into potential infringers and ONLY submit a claim if they think they could realistically win.
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Scott, 11 Sep 2012 @ 10:23am

Re:
I agree with that,Don't forget remix artists. I had 2 accounts terminated for Youtube poop that I made over the years.
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Anonymous Coward, 11 Sep 2012 @ 10:26am

Re: Re:
Only if you stop. Otherwise you're going perpendicular to your original direction of travel, as though you had made a right turn.
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Scott, 11 Sep 2012 @ 10:27am

Re:
That would be nice,given the chances on that everything would be public domain.
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Anonymous Coward, 11 Sep 2012 @ 10:29am

Re: Too simple?
"Non-commercial" is still loose and hard enough to define as it is; it has enough problems being in its associated Creative Commons licenses.
I'm in favour of getting rid of all the problems with copyright in a single stroke. Just amend Title 17, section 107, to the following:

107 . Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work is not an infringement of copyright.
All uses of copyrighted work are fair.
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Anonymous Coward, 11 Sep 2012 @ 10:32am

Re: Start with Giving the DMCA Misuse Section Teeth
Yes, there is 512(f), which is largely unknown to those who typically discuss the notice/counter notice provision. And, yes, the standard applied to a rights holder is "subjective intent". To my knowledge, however, the one case deciding "subjective" versus "objective" intent was Rossi, a case before the 9th Circuit. I am not aware of other circuits having weighed in. Then we have Lenz (the dancing baby), a district court case that applied Rossi, but was never published as a formal opinion that could have precedential value with the Federal District Court for the Northern District of California.

The "subjective" standard notwithstanding, it does bear mentioning at least one case in the Federal District Court for the Northern District of California where the party whose published content was taken down was able to prevail and secure damages against the party alleging rights in support of its takedown notice. That case is Online Policy Group v. Diebold.

Should the standard be changed? I am not intimately familiar with the issue, so I express no opinion on this issue. My comments is solely to note that it is possible for one subject to a knowingly false takedown notice to prevail.
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Anonymous Coward, 11 Sep 2012 @ 10:48am

Re: Re:
If you smear shit everywhere expect the janitors :P
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Scott, 11 Sep 2012 @ 10:57am

Re: Re: Re:
I bet you don't know what it is. It's those mash up videos hut mine were falling the gray area.I dispute claims on copyright for some go through and some don't.
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Rekrul, 11 Sep 2012 @ 10:58am

Re: Re:
I never got that joke. Doesn't making three lefts just put you back in your original starting place?

No, not if each turn is 90 degrees.

If you start out facing North and make a left turn, you will be facing West. Make a second turn and you will be facing South, a third left turn and you will end up facing East, which is the way you would have been facing after a single right turn.
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Anonymous Coward, 11 Sep 2012 @ 11:01am

There are penalties under law, but the legal system refuses to apply them.

It is therefore up to the person wronged to apply justice.
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Rekrul, 11 Sep 2012 @ 11:02am

I wonder what would happen if hundreds of people started filing takedown notices against government and political sites (through a VPN of course). Would the politicians notice the problem if their sites were being taken down on a daily basis due to false DMCA takedown notices?

Naturally I'm not advocating this, just thinking out loud, as it were...
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Scott, 11 Sep 2012 @ 11:11am

Re:
Remember that happened last year on Youtube were Justin Bieber's video were taking down falsely as well as many others.
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The eejit (profile), 11 Sep 2012 @ 11:42am

Re:
You'd probably geta visit from the 4Chan Party Van for "Fear party making".
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Anonymous Coward, 11 Sep 2012 @ 12:04pm

Re: Too simple?
There are several problems in this. Let us take a site like youtube. It has a lot of "random" users and a few partners. The random people get nothing from the videos they upload, while youtube gets traffic, which they in turn can use to collect data and later monetize. Question: Is Youtube commercial in this instance?

A partner will be able to use Adsense to monetize specific videos. Question: Is all his videos commercial use?

Now, depending on how people answer the above questions, youtube can use the rules to their advantage:
If both are illegal it will have to keep on track with what they are doing now.
If non-partners are non-commercial use, they will never let that channel get partnered, but they also have 0 incentive to remove it. Therefore you are getting youtube as a "judge" of what is copyrighted content.
If partnered non-commercialized videos are ok, you end up with youtube letting whoever has most views get partnered. The gateway will be Adsense and they will have to be "judge" over what videos can be monetized.
If none of those uses are commercial, it will be almost impossible to find a commercial use online...

None of the above situations are really where anyone want things to go. The only solutions to the problems about copyright online is through very drastic laws in either direction or new programs able to monitor, restrict, censor and monetize. Of those choices I think most would wait for evolution of programs and technology, while a few would scream for absolute laws.
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average_joe (profile), 11 Sep 2012 @ 12:13pm

Re: Re: Start with Giving the DMCA Misuse Section Teeth
Then we have Lenz (the dancing baby), a district court case that applied Rossi, but was never published as a formal opinion that could have precedential value with the Federal District Court for the Northern District of California.

Lenz is ongoing. The court is sitting on cross-motions for summary judgment at the moment. Decision should come soon. Universal, IMO, carried its burden in demonstrating not only subjective, but objective, good faith in issuing the takedown.
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PRMan, 11 Sep 2012 @ 12:23pm

Re: Re:
I think UPS actually does this to avoid waiting for red lights. They make 3 right turns instead of a left turn.
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Keroberos (profile), 11 Sep 2012 @ 1:00pm

It would be nice to see some form of punishment for false DMCA takedowns, but it would take a complete rewrite of the law to do it. There are so many weasel worded parts to the DMCA that it's basically a carte blanche for the copyright holders to take down whatever they want.

Also, the biggest problem with abuse is becoming ContentID systems which have nothing to do with the DMCA (or any other law), so changing the DMCA would do nothing to mitigate the abuse there.
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ltlw0lf (profile), 11 Sep 2012 @ 1:06pm

Re: Re: Re:
Only if you stop. Otherwise you're going perpendicular to your original direction of travel, as though you had made a right turn.

For this to work, however, you must go to the next intersection before making a left had turn. Otherwise you will be off by one block from where your original right hand turn would have been.
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Anonymous Coward, 11 Sep 2012 @ 3:49pm

Well the person who false claims were made against should be paid not the courts or the people dealing with the claims. They should only get an amount equal to their cost of upkeep. The rest should be paid to the innocent victim that was unjustly condemned as guilty.

The system it has to protect both parties. It cannot work only one way because that would just be a dictatorship and I'd like to think we're not that bad just yet. Although it seems like it sometimes :/
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Anonymous Coward, 11 Sep 2012 @ 6:03pm

I have to say you are all over the road with this story. It makes me think you are taking the temperature of the room to see what your loyal subjects react to. I seems they are silly enough to like a 3 strikes policy, even though it's entirely out of scale.

Where to start? Hmmm.

"Separately, when the takedowns happen via automated systems like YouTube's ContentID, or via government action, like ICE's domain seizures, the perjury claims have no bearing at all, since they happen outside of the DMCA entirely. "

So none of these have to do with false takedown notices, so why mention them at all, except to create a little confusion and mix things together to try to make it look worse?

" Over at TorrentFreak"

Great source, you know they aren't going to be biased or anything. They use the great statistical calculation of false reports and they come up to "a healthy percentage" but no numbers. You would ream the **AAs out for a report with something like that in it, why not do the same to TF? Oh wait, you agree with TF, so you let it slide.

"In the end, I really don't know what the proper response is -- but it does seem clear that the ability to falsely censor content online, thanks to the DMCA and bogus notices and automated systems, is a real problem that needs to be fixed."

Again, you are mixing a bunch of stuff together here. Because of actions by ICE, then rights holders should be punished for... what exactly?

You also know, understand, but fail to allow for the idea of "good faith". DMCA has backed rights holders into a corner, where they are require to each individually police the internet for misuses of their content. Many companies send out thousands of DMCA notices per day, in an attempt to stem the flood of pirated material eating away at their businesses and rights. They submit these notices generally in good faith, without intent to censor anyone.

There are literally millions of DMCA notices sent per month, and you highlight less than a handful that cause some form of what you perceive as censorship - and the system needs to change?

Wow, talk about not seeking any balance.

Tell you what: Let's round up the first, what, 1 million people pirating stuff, have them pay $150,000 for each item they are pirating, and then, maybe then, we can look at the your few cases you think are false claims. Until there is a little balance in, things, your whining is just so out of place.
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Scott, 11 Sep 2012 @ 7:55pm

Re:
Don't you realize that only encourages more pirating.
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Mason Wheeler, 11 Sep 2012 @ 8:42pm

Re: Mirrored Damages
I think the Brazilians have got a good first step, but making it equal isn't enough. Fair use needs to be put in its place as an important right that is higher than copyright, not equal to it, and the public domain needs to be regarded as sacred, seeing as how historically, the entire point of copyright was as a step on the road to putting things into the public domain. Rights protection is just an implementation detail, and trying to turn it into The Important Thing is the tail wagging the dog.
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Seegras (profile), 12 Sep 2012 @ 5:47am

Rightsholder
The "penalty of perjury" part only needs to apply to the claim that the party writing the letter is authorized to act on behalf of the rightsholder.

Yes, but what if this "rightsholder" isn't actually the "rightsholder", but someone falsely claiming a copyright? It means that the party writing the letter is NOT authorized to act on behalf of the rightsholder, but just on behalf of someone trying to defraud somebody.

The way I read this, if you're acting on behalf of a fraudster, you're still liable. You could sue the fraudster, tough, if he told you he was the rightsholder..
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Anonymous Coward, 12 Sep 2012 @ 5:58am

Re: Re: Re:
Mythbusters did something on this. Found the right turns only method saved a bit on fuel costs.
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Anonymous Coward, 12 Sep 2012 @ 6:06am

Re:
The onus is always on the rightsholder to police for misuses of their content. Why would it be anyone else's job?

And DMCA notices do not determine infringement, they are accusations. Only courts can make that determination. To base the number of infringements on DMCA notices filed is utter bs.
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Anonymous Coward, 12 Sep 2012 @ 9:27am

Re:
Rounding up a million based on what - your system of reckless settlement letters and subpoenas? Yeah, that'll work. How about you convince judges that this system is working instead - would you like to try where Evan Stone has failed?
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Scott, 12 Sep 2012 @ 9:47am

Re: Re:
In my case,I would get permission from copyright holders to do mash up parody videos but it would take forever get permission,So basically I have no choice but do without it.
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Gerald Robinson (profile), 12 Sep 2012 @ 11:43am

False takedowns
First any automated system should fall under the perjury section as it is not the holder of the copyright and can not represent them.
Second penalties should be the same as for copyright violation and the statutory penalties should apply but for live streams should be per person cut off from the stream.
Persistent violators (more than 5 a year) should be sentenced to death. The corporation should be forced to take chapter 11 bankruptcy with pensioners, and debtors given priority and executives and members of the board forfeiting all rights.
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Rick Carufel, 18 Jan 2014 @ 5:26am

False DMCA complaints
It would appear That Disney is sending false DMCA complaints to Charter Communications with the malicious intent to get people's internet service provider to cut their internet based on false claims of copyright violation. Case in point:

I downloaded a copy of a movie in November for the purpose of writing a critique of the special effect, fair use as far as I am concerned, for journalistic purposes. There is basically no way to do a good critique of special effects without a copy of the movie so you can watch the same scene repeatedly to analyze what is happening as far as effects are concerned.

Since then Disney has sent three DMCA notices to Charter. One for the original download and two more that are fraudulent stating I also downloaded the same movie in December and now in January. This is malicious defamation
trying to defame me with my ISP and nothing more. It is also criminal abuse of the DMCA and vindictive persecution in an attempt to falsely make me look like a serial copyright violator.
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