Youtube takedowns aren't DMCA requests. There is no legal penalty for perjury. It's just a good old fashioned mob shakedown. In this case neither party is even subject to US law so even more irrelevant.
The DMCA has a (de facto toothless) perjury clause for knowingly submitting a takedown for content that doesn’t violate the copyright of the claimant. That doesn’t apply to YouTube claims that are handled via their internal tools outside of the DMCA process.
Aren't DMCA takedowns notices made under penalty of perjury? Why are they being sent out in what seems to be an automated fashion without any proper review?
I seem to recall reading that (1) the DMCA is not being used for YouTube takedowns (YouTube has its own takedown process that doesn't have a possible penalty of perjury), and (2) an automated process won't ever meet the bar for penalties under the DMCA.
Obviously I'm not a lawyer, and I'd love to see someone turn the tide with a solid victory against a false DMCA or non-DMCA takedown. Corrections welcome.
If you're referring to the DMCA, there are two important things to know:
1. YouTube supports DMCA notices, because it has to in order to keep safe harbor, but YouTube's preferred/automated system does not use DMCA notices and so is not bound by the DMCA's rules.
2. It's next to impossible to meet the standard for getting punishment/damages out of a false DMCA takedown. The only part of a notice that's made under penalty of perjury is that assertion that you are, or are authorized to act on behalf of, a copyright holder. The claim of infringement is not made under penalty of perjury. The infamous Diebold case did get damages, but only because Diebold literally admitted in court "we knew this wasn't infringing but sent a takedown anyway". As long as the sender of the takedown notice isn't quite that stupid, they won't be on the hook for anything.
Yes, but nobody ever was convicted of perjury for sending fake DMCA takedown requests, despite evidence of companies using dumb scrapers that auto-send takedowns for anything with the same name as their work, so does it really count as a deterrent?
> And those penalties are based on the cost to the other guy. So if warner falsely demands your youtube video is taken down - you lost no money so even if they lied the penalty is zero.
DMCA notices include the required text "under penalty of perjury". Perjury qualifies as a criminal felony, quite aside from any financial penalties. Unfortunately, nobody has ever enforced that requirement; someone ought to. Perhaps with the parties responsible for sending such notice imprisoned for up to five years (http://www.law.cornell.edu/uscode/18/1621.html), they'd think twice about sending false takedown notices.
Punishment for filing false DMCA takedown notice would either require:
1) An civil action for damages by the harmed party, or
2) A criminal prosecution for perjury.
I'm guessing that the vast majority of people harmed by false DMCA takedown notices either do nothing or, if they act at all, file a counternotice with the content host and leave it at that.
The problem may not be the absence of available sanctions, but the fact that people don't seek to apply the available sanctions.
Only one part of a DMCA takedown is under penalty of perjury, and it's quite possible to file a knowingly false takedown request without that part being falsified.
> DMCA takedowns are filed under the condition of perjury
Which means that you must believe what you claim to be true. It doesn't mean there's any penalty whatsoever if what you're saying is found to be bullshit after the fact.
Instead what happens is media-companies strong-arm content-hosting companies (YouTube, etc) to let them file informal takedown notices that don't open themselves up to perjury with much weaker protections for innocent people caught up in the collateral damage - what does YouTube etc get from it? I suspect it's something they agreed to do to sweeten their deal to keep Vevo and other brands' content mirrored on YouTube.
While this incident is entertaining, as the article points out, more often it is damaging to the "offender" of an errant takedown. DMCA takedowns are filed under the condition of perjury, I don't understand how a. you can meet the review standard for perjury in an automated fashion or b. how there isn't any punishment for those who file errant DMCA takedowns especially in an automated fashion.
Aren't DMCA takedowns required, under penalty of perjury, to assert a non-frivolous copyright claim? Is there any recourse for what appears to be clear abuses of the DMCA?
No one would ever attempt to prosecute a corporation for perjury (the penalty specified by the DMCA) if it sends out a piddling few hundred fraudulent takedown notices. On the other hand, I wouldn't put it past them to throw the book at any individual they catch sending one. Individuals have neither the stamina for a long legal battle nor any means of plausible deniability ("The notices were automated!", "We don't know who sent it.", "The guy who sent it has been fired, problem solved.", etc.), and prosecutors like winning cases.
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