(f) Misrepresentations.— 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.
I was the plaintiff in OPG v. Diebold, which was the first US federal lawsuit to establish the enforceability: we won. You can't just issue spurious, false DMCA notices without opening yourself up to large damages, such as the ones that Diebold had to pay.
Sure, just like there's a 4th Amendment right to not be the target of unreasonable search and seizure, and a constitutional right (Section 9) to "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time". Oh, there's also a 5th amendment right to be indicted by a grand jury for a capital or infamous crime.
But you're also almost certainly snooped on every telecomm session, and the US Government has a program for assassinating US citizens.
The US government doesn't enforce laws strictly, or by what the obvious wording says, nor does it enforce laws uniformly. In practice there's a "high court" for large corporations and rich people, and a "low court" for commoners and other smaller personhoods.
I get your point, but a legal opinion from the Department of Justice is not the same as a "program." Set the hyperbole aside and realize that laws are always in flux, and that the courts largely define things like "unreasonable search," etc. The statement from the parent is still true. There are penalties on the books. It takes people bringing abusers to court, though, to decide the exact nature of those penalties.
In the case of the near-universal snooping by the NSA and related agencies, the courts have ruled, I believe: nobody has standing. Virtually every time the US Government uses the "State Secrets" privilege, the courts just let it go. For all practical purposes, what seems to me as clear wording of the 4th Amendment gets taken to mean something else. It's not really hyperbole. There are penalties on the books, agreed. They're toothless for various factors, except maybe for the very wealthy personhoods among us.
Not officially, but in practice, there's a "high court" for those entities (corporations, people, etc) with a lot of money. Defendants either don't get charged with as serious crimes for the same or worse actions, and those few found guilty don't receive equal punishment. In practice, there's a "low court" for the less well off entities. Laws are applied far more broadly (any excuse for a guilty verdict) and far greater punishments are assessed.
Again, this distinction is somewhat de facto, rather than any official status that mean "use the high court" or "subject to the low court". It's just a double standard that seems to be in place unofficially.
You better have legal fees awarded to you as part of the damages, or have pro bono representation... a $100k damages award isn't going to pay for the $1-$2mm in costs to litigate a federal suit.
For all practical purposes the 512f has proven to be a pretty pointless tool for holding large corporation accountable.
RE: damages, per above "...shall be liable for any damages, including costs and attorneys’ fees..."
Agreed that not enough people are actually suing companies for false 512f takedowns. Sounds like this could be an interesting business opportunity for an enterprising attorney.
> For all practical purposes the 512f has proven to be a pretty pointless tool for holding large corporation accountable.
That's because it's very difficult to prove that they did it knowingly, especially in an age of automated DMCA takedowns. It has nothing to do with the pain of a suit or any of that, but that you're likely to lose.
I don't get why it should make any difference if a takedown is automated, or not.
If you run an automated system that deals in any way, shape, or form with legally binding documentation and - entites, you should be liable for the consequences, period.
If you're a financial institution, which runs an automated trading system you can't really argue that this trade, which just cost you a couple gazillions, is from an automated system and should thus be considered invalid.
Any exchange and the regulating authorities will laugh you out of business.
Why should different principals apply if you automate your legal bullying?
No no, you're missing the point. Making a mistake here is not actionable -- it's totally legal to make a mistake and file for the wrong things or thinking that you have the right to the material when you actually don't. Only if you knowingly file a false claim is it an issue. That's the fundamental flaw in the DMCA's takedown construct, IMO.
Edit: To make an analogy, it's like me firing a gun in no particular direction. If I hit someone, it's at least manslaughter. But if it were like the DMCA takedown system, there would be two options: I didn't knowingly shoot at anyone in particular, so I get off with nothing, or I knowingly shot at them and was in the wrong, making it murder.
If you construct an automated DMC takedown system, even if you know that a certain proportion of those takedowns will be illegitimate you suffer no penalties, regardless of the fact that those illegitimate takedowns could be very onerous and costly for the victims.
Conversely if you set up a gun in the roof of your house and have it randomly shoot into the street, lets see how long you get away with that for.
So this post on Ars is interesting- because it seems to involve a non-US company sending DMCA takedown notices, which triggers a US Law, but if you try to find the non-US company and sue them then going after them might be very hard (even if you win, because recovering damages might be impossible). So essentially, they can use US law against a site, but have little change of repercussion?
If they have invalid WHOIS information, isn't that ground for them losing their domain?
Nobody here has made what I thought to be the biggest point in this article. The reputation management company...
Given the situation and the details mentioned in the article. It seems the reputation management company is hiring people to re-post content and send DMCAs. What other explanation is there for why somebody would rip off blog posts. Obviously this sort of thing would be a last resort for the reputation management company. But in some cases, there may be no other way to remove / push down the unwanted content.
I would bet this is a common tactic of reputation management companies. Can anybody here confirm or offer insight about how these companies work?
The same thing occurred to me as a possibility, but saying that "it seems they are doin this" is way stronger than what we can conclude from this article. Do you have any evidence beyond "hey, this could happen"?
No, there really isn't hard proof which is why I'm assuming ars didn't jump to that conclusion.
To me what points to it the most is why would somebody rip off those RetractionWatch articles in India. It seems that something other than trying to increase ad revenue is going on here.
a site that I think I learned about from another user's comment here on HN, to update the reputations of "researchers" who have had to retract many published journal articles. All the more reason, I think, to regularly read Retraction Watch to find out what is going on. The Retraction Watch site's own reporting
Well, that should be fixable - if this is an actual DMCA takedown (instead of a simple complaint), then it does come with a mandatory requirement to be 'under penalty of perjury'. Intentional misuse can thus be persecuted, and may get even criminal penalties.
Of course, it's a big question whether they will try to fight it in courts and if DMCA perjury jurisdiction can effectively reach the accused company in India.
It's much simpler than that. To be protected by the safe harbor provision of the DMCA, a service provider must not only promptly disable access to material upon receipt of a notice, they must also promptly re-enable access to that material upon receipt of a counternotice.
The original author need only send these notices and the blog posts must be put back up if WordPress wants to be protected from being sued itself for distributing the material. In most cases, this entails nothing more than 2 minutes to copy and paste an e-mail from a readily available template, simply adding in your name and URLs of the content you attest you have permission to publish.
The DMCA errs on the side of leaving alleged infringing material online, not the other way around. To force something down, you have to go to court and get a judgement.
The perjury statement is actually weaker than it seems. The wording you see in a lot of copy-and-paste notice templates is stronger than is required by the act. You only have to attest under penalty of perjury that you are authorized to act on behalf of the holder of a copyright, not that the contents of your claim are true.
"To get content removed, copyright holder Bob need only claim a good-faith belief that neither he nor the law has authorized the use. Bob is not subject to penalties for perjury. In contrast, to get access to content re-enabled, Alice must claim a good faith belief under penalty of perjury that the material was mistakenly taken down. This allows for copyright holders to send out take-down notices without incurring much liability; to get the sites back up, the recipients might need to expend considerably more resources. Section 510(f) makes the sender of an invalid claim liable for the damages resulting from the content’s improper removal, including legal fees, but that remedy is not always practical.
Furthermore, ISP’s tend to remove allegedly offending material immediately, while there is a 10-14 day delay before the ISP re-enables access in response to a counter-notice. For example, if a website advertised an upcoming labor protest outside BlameCo, BlameCo could send a DMCA notice to the site's ISP alleging copyright infringement of their name or logo a week before the protest. The site would then be disabled; even if the site's owners immediately filed a counter-notice, access would not be re-enabled until after the protest, too late to be useful." [1]
The behavior described above is consistent with many ISPs, Google and Youtube, for example. In fact, with Youtube's stated policy [2] it is not even clear that without consent from the original "copyright holder" that they will restore content (though from DMCA terms alone they are theoretically legally obliged). Wordpress's stated policy [3] is more direct but no less frustrating for victims of malicious takedown notices.
It's a trade-off. There's potential harm to the victim of a false claim, but there's also potential harm to the victim of a true claim in the case of a false counternotice. If the infringement is legitimate, then the law wants there to be ample time for the victim to go to court to get an injunction so further harm isn't done. It allows those ~10-14 days for that to happen -- after which the material has to be put back online for the service provider to retain the safe harbor benefits.
The safe harbor provision of the DMCA exists entirely to take away power from copyright holders. It creates an entire class of businesses (internet service providers) who can't be sued for infringing copyrights if they follow certain rules. It makes copyright holders that abuse the provision pay both damages and legal fees of the victim. It enables the legal existence of sites like YouTube despite rampant copyright infringement.
Meanwhile, other provisions of the same act directly benefit copyright holders: prohibiting breaking of anti-circumvention measures, for example. This gives DRM its legal teeth beyond simple breach of contract.
How does this fit into your conspiracy theory? There isn't one single group that this act represents the interests of.
It isn't a conspiracy theory to say that media interests did the lobbying for DMCA. I cannot even find a reference to an ISP lobby that promoted it. Was there one?
To be protected by the safe harbor provision of the DMCA, a service provider must not only promptly disable access to material upon receipt of a notice, they must also promptly re-enable access to that material upon receipt of a counternotice.
Not quite!
There is a re-enabling procedure. But it comes with a mandatory 10 day waiting period before the material can be put back up.
If the perjury jurisdiction can't reach India, then maybe the DMCA notice shouldn't reach the USA. At the very least, it would be a good example case to bring up with your Congress-critter about changing the DMCA.
I think this was tongue-in-cheek; many in the US (including official people) treat the DMCA as if it was an international law. At the very least, this behavior exists on general copyright issues.
Yes. DMCA had for example a real impact on the TPB case in Sweden. Any work that would start implying that DMCA notices should stop at the border, would run into the lobbyists.
(I guess I should consider Poe's law a bit more in the future.)
Well, US originated DMCA notices already don't reach outside the US.
If I'm outside US jurisdiction (i.e., I'm not there, won't be there and I'm not a company with a branch or sales in USA), then DMCA doesn't apply to me. They might send a notice accidentally, but they generally don't bother since they can be safely ignored and usually are.
The local laws do apply, so USA tried to bundle DMCA-style provisions in some international trade agreements; but in general there are a bunch of things (such as breaking DRM or selling jailbreak kits) that are restricted by DMCA but explicitly legal in many countries.
The DMCA safe harbor provisions apply to service providers, not to their customers. They exist to remove the service provider's liability for unknowingly infringing copyrights -- WordPress is allegedly infringing by distributing this material, not just the author that uploaded it to the blog. What matters here is (a) where the service provider is, not where you are, and (b) whether the service provider wants to be immune to an infringement lawsuit in the US. They may be sued domestically even if a judgement can't be enforced, and they may prefer to do the minimal actions necessary to get the safe harbor protection so their future potential business with the US isn't threatened. Copyright is enforced internationally, and there are many businesses outside the US that will happily comply with the notices. There's no downside, complying turns "you are possibly doing something illegal and could be sued" to "you cannot be sued even if what you're doing is illegal".
Yes, of course, I'm not talking about customers of third-party service providers - since such customers don't receive DMCA notices, ever.
DMCA applies to Automattic who run Wordpress.com, but doesn't reach to the multitude of other Wordpress hosts outside USA.
Pure copyright violations are illegal almost everywhere, so non-US entities may likely honor such DMCA notices - although to them, they are just normal complaints/threats with zero effect on whatever safe harbor provisions apply in their country. But for the DMCA-specific provisions (distribution of jailbreaks, console-DRM-mods, etc) they can be ignored if there are no local prohibitions against that.
Is anyone else having a problem with Google no longer acknowledging responses to false/faulty/inaccurate DMCA takedown requests?
We used to receive 3 or 4 a year, and Google was good about getting us relisted when we explained the error to them. I had two DMCAs from Google last month, and they still haven't gotten back to me about my request for relisting....
Are there no "digital notary" services? Off the top of my head, such a service would allow you to submit a block of text or perhaps a link which the service would regularly check and hash / mirror.
I'm thinking this would be straightforward to create, but hard to become established as an authoritative source.
EDIT: I see archive.org is a popular way to go about something like this.
archive.org is awesome - however there is one thing that bothers me about the indexing service, and I am not sure how it could be improved. The problem is that if a site currently has a robots.txt blocking indexing, the whole history of that site disappears with it. On the one hand, this makes sense - what if some webmaster forgot to prevent indexing and then adds it, with the original intention to not share any of the sites work. On the other hand, this prevents me from finding a site I worked on 15 years ago, because the current domain has it blocked.
It would have to come with an unbreakable chain of authentication. Otherwise, those that steal the content, would just submit it first, under their own or a made up name.
Then it would make it harder to actually prove it is your content if you didn't first put it there.
I start to wonder: what can we do to actively prevent such things to happen? E.g. someone can copy a blog content, set the date back by a few months, publish it, and submit the DMCA takedown. Even if it reaches the court, who and how will decide who the original author was?
The original author will submit a counternotice and their content will be put back online. If the copier wants to take their bogus case to court, a judge will decide based on the evidence presented. Google cache, Archive.org, server access logs, code repository commit histories, e-mails or whatever else you can find could be presented as evidence of the publication date. In the meantime, the service provider must assume the content is published legally if they want safe harbor protection from bogus lawsuits of their own. I can't think of a better system, honestly.
Yes, as has been mentioned several times. The act balances the interests of all the parties -- the delay may hurt, but it provides actual victims of copyright infringement the time to go to court and get a preliminary injunction to prevent further damages. If the notice was fraudulent and there was no infringement, the filer is liable for damages and attorneys fees of the accused should they wish to sue and recover them. Whatever loss those 10 days offline caused are recoverable damages.
I asked this question regarding a recent thread where the site owner claimed to have gotten ripped off, and received no responses. http://news.ycombinator.com/item?id=5166902
I'm a little unclear about how this solves the problem. Why can't a copyright violator request that their site be backed up, perhaps even before the original? Or are you suggesting that site owners upload to the wayback machine as part of the deployment process?
One somewhat late comment: based on what I saw in other discussions of this, the domain registration of the site in India is basically all false information - one starting point might be to see what can be done about getting that domain registration cancelled. The Indian registry does have a policy that registrants must provide accurate information.
If we have to keep this thing, I dearly wish the party filing the request would have to show some proof or at least be in the US. this guilty before innocent crap is a pain.
On a sadder note, looks like the alumni association is going to receive a letter from me.
How easy is it to file a DMCA takedown notice? I would think there's some due diligence on the part of DMCA to verify the claim first. At least, I hope so.
Oh, come on, wake up! Don't you see yet that this is exactly what the DMCA notices and similar have been designed to do? It is a tool to silence the inconvenient whistleblowers.
There are penalties.
Check out 17 USC 512(f): http://www.law.cornell.edu/uscode/text/17/512
(f) Misrepresentations.— 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.
I was the plaintiff in OPG v. Diebold, which was the first US federal lawsuit to establish the enforceability: we won. You can't just issue spurious, false DMCA notices without opening yourself up to large damages, such as the ones that Diebold had to pay.
http://en.wikipedia.org/wiki/OPG_v._Diebold