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.
(There's a couple of points in a DMCA notice that are certified under penalty of perjury, but they aren't the 9bes that are likely to be be false on a false one in the first place.)
> Which is totally contrary to how DMCA works, if someone makes a wrong claim there it gets very expensive for them.
No, it doesn't. There is only one part of a DMCA takedown notice that is made under penalty of perjury, and it's not the part that is usually at issue in a false notice.
>But isn't filing a false DMCA takedown in and of itself illegal, beyond any civil damages caused?
According to this site[0]:
"...if someone files a fraudulent DMCA takedown notice, they can be sued for the damages caused, along with the costs and attorneys’ fees that were incurred in pursuing those damages. In many cases, the costs of attorneys’ fees can far outweigh the actual damages."
Apparently, there is standing for civil action against someone filing a fake DMCA claim, but no criminal penalties.
But YMMV. The above was just the first relevant link in a search for 'criminal fake dmca claims'.
> 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.
> 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.
> A false DMCA takedown notice can result in a lawsuit including damages and legal fees.
Only in a very narrow sense of "false": if the issuer of the takedown claims they have copyright over something they don't. The statement that they have a copyright on some work is made under penalty of perjury.
The statement that your work infringes on their copyright is not made under any penalties at all, and there are no consequences for falsely claiming infringement.
So if you play the Moonlight Sonata, I can't claim that I own the copyright to the Moonlight Sonata and you're infringing. I can claim that I own the copyright to some actual work I own the copyright to (even if totally unrelated) and that your work infringes it.
>On the other hand, laws exist to prevent people from submitting takedown notices in bad faith.
Realistically these laws are hard if not impossible to enforce. There's absolutely nothing stopping someone from filing a fake DMCA under a fake name and getting absolutely no retribution for their actions. Ask any up and coming YouTube content creator and they'll probably tell you they've been hit with fake DMCAs in the past, which immediately results in the user's video getting pulled.
After that point, the damage is done. Even if it comes back later, especially if the content is time sensitive, the troll won.
Considering that you have to prove actual bad faith (rather than just negligence) and have to have someone's actual identity to initiate a DMCA countersuit, the protection offered in the internet age is laughable.
> Second, knowingly including false information on a DMCA takedown notice is perjury
I've reviewed the DMCA a few times and I am pretty sure this isn't true. It's supposed to be the "teeth" of the DMCA to prevent false claims, but the actual teeth are very blunted.
The requirements a DMCA takedown notice are[1]
1. you have to sign it as someone authorized to act on behalf of the copyright owner.
2. you have to identify the work you claim is being infringed.
3. you have to identify the work you want them to take down.
4. you have to give them your contact information.
5. you have to state that you have a "good faith belief" that the content is infringing.
6. Direct quote, and the only use of the word "perjury" in the notification requirements: "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed."
The only thing you must declare under penalty of perjury is that you are authorized to act for the copyright owner. The only other claim you make is that you are acting in "good faith", which is super fuzzy. An actor sending out notices on content detected by content-id bots is almost certainly acting in "good faith" if they haven't been made aware of potential errors by those bots.
> A statement that the information in the notification is accurate, and under penalty of *perjury*, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed.
Seems like no one has ever been prosecuted for perjury on a DMCA take down notice. This feels like more of an empty threat by Github to prevent false DMCA complaints, but of course submitting claims on their repos would be one heck of a way to test that.
IANAL, but DMCA takedowns do not have "no repercussions" for false claims. If the DMCA takedown was actually baseless, they would be opening themselves up to damage liabilities, as specified under 17 U.S. Code § 512 under section f[1]. This is different than YouTube copyright claims, which as far as I'm aware don't actually have any repercussions for false claims unless YouTube decides to take action[2], since copyright claims on YouTube are not DMCA takedown requests.
But isn't filing a false DMCA takedown in and of itself illegal, beyond any civil damages caused?
Edit: Okay, the filing requires asserting "under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed." But I'm not sure whether anyone has ever been prosecuted for perjury for something like this. It's seemingly generally resolved only by suing for damages.
- A false DMCA takedown notice can result in a lawsuit including damages and legal fees.
- Most YouTube takedowns have nothing to do with the DMCA as YouTube has their own proprietary system. This system is extrajudicial. This system has the type of problems you're raising and little recourse.
I actually think the DMCA takedown process itself is problematic, but YouTube's own private one is a whole extra level of abusive.
People need to remember that laws reforming the DMCA would do nothing to fix YouTube's system, unless they outright banned YouTube/Google from operating an extrajudicial system.
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.
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.
On the contrary: filing a false DMCA takedown notice opens you up to perjury.
...even if no-one has been prosecuted yet: https://law.stackexchange.com/questions/51541/has-anyone-bee...
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.
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