How The DMCA Is Being Weaponized Against E-Commerce Sites
from the dmca-is-a-censorship-tool dept
The copyright system is flawed at many levels, as hundreds of posts on this blog make clear. One particular class of problems concern takedowns. The best known of the ‘notice and takedown’ systems, that of the US Digital Millennium Copyright Act (DMCA), allows the copyright industry to send takedown notices when they discover infringements on a site to the relevant Internet companies, asking for removal of that material. The person who uploaded the relevant files can send a counter-notice. Such a response may trigger a lawsuit from the company claiming copyright. If it does not, the site owner may restore the material that was taken down.
That might look like a fair and balanced system, but appearances are deceptive here, for reasons Walled Culture the book (free digital versions available) explores in detail. Takedown notices are generally sent by lawyers or specialists who carry out this operation all the time, often thousands of times a day, using automated systems (Google has received billions of such automated requests). These experts know the details of the law and are only required to provide a statement that they have a ‘good faith belief’ that the use of the copyright material is unauthorized.
By contrast, recipients of takedown notices are often small businesses, or ordinary members of the public. They are unlikely to have any legal training yet must respond to a formal legal notification if they wish to send a counter-notice. The latter must include a statement ‘under penalty of perjury’ that the material was taken down by mistake. Many will quail at the thought that they risk being convicted of perjury, and this stands in stark contrast to the mere ‘good faith belief’ required from the sender of a takedown request. Consequently, most people will simply accept that their material is removed, even if it was legal, for instance under fair use.
Takedown notices can be abused for purposes that have nothing to do with copyright. For example, they are a handy way to censor perfectly legitimate online material. The practice has become so common that an entire industry sector – reputation management – has evolved to take advantage of this trick. Online reputation management companies often use takedown notices as a way of intimidating sites in order to persuade them to remove material that is inconvenient for their clients.
Takedowns can also be mis-used in a business context, as a story on TorrentFreak indicates. It concerns the Canadian e-commerce platform Shopify, some of whose users had been targeted with takedown notices:
Starting on October 5, an unknown person created the account “Sacha Go” which was subsequently used to file dozens of DMCA takedown requests. The notices targeted listings on a variety of shops selling perfume products, claiming that they infringe copyright.
After being alerted by one of the targeted merchants Shopify looked into the matter, concluding that all takedowns were false. Instead of containing legitimate claims the DMCA notices were being used to harass Shopify and its merchants.
Shopify explains in a complaint it has filed alleging DMCA violations that those false takedowns can have serious financial consequences for Shopify’s merchants:
Under certain circumstances, a takedown notice can even result in the complete termination of a merchant’s online store. Like all DMCA service providers, Shopify is required to implement a policy under which those who are “Repeat Infringers” lose access to the platform. Under Shopify’s policy, a takedown notice results in a “strike,” and an accumulation of strikes over time results in termination. A merchant that receives a takedown notice may submit a counter notice and lift the strike. But for unsuspecting merchants who may be unfamiliar with the DMCA, a sudden onslaught of takedown notices can result in the termination of their entire store under Shopify’s repeat infringer policy.
Shopify’s complaint warns that “unscrupulous individuals are increasingly seeking to exploit the DMCA takedown process for anti-competitive purposes or reasons of animus.” In other words, these takedown notices have nothing to do with copyright or protecting the rights of creators.
The experience of Shopify and its merchants demonstrate well how extreme copyright laws can be abused in far-reaching ways. Those future issues clearly never occurred to the politicians who were too focused on giving the copyright industry yet more one-sided legal powers when they drew up the DMCA.
Follow me @glynmoody on Mastodon. Originally published to Walled Culture.
Filed Under: attacks, dmca, legal censorship, notice and takedown, repeat infringer policy
Companies: shopify
Comments on “How The DMCA Is Being Weaponized Against E-Commerce Sites”
In trademark land, there is the schedule A lawsuit, which looks fairly similar to the mass-DMCA filing.
Whether it occurred to them or not, it was brought up repeatedly while the wording of the DMCA was being hashed out. The one-sided wording is entirely deliberate, and is working exactly as the copyright industry intends.
This needs to be changed. After all, the sender of the complaint is the copyright holder or someone authorized to act for them, so they have complete knowledge of what is alleged to have been copied. The recipient may not even know the work the sender’s referring to exists. The requirement to swear under penalty of perjury should be imposed on the sender rather than the recipient, since the sender has the required knowledge. There also should be statutory penalties for filing a false take-down request, as well as for failing to initiate legal action if the request is counter-noticed.
Re:
What Google should have done a long time ago is to take down HBO.com by the request of HBO themselves, or take down Sony’s YouTube channel or the like.
It’s high time that these lawmakers and copyright holders feel the consequences of the shitty laws they paid and bought, just like us normies have to. There’s simply no other way they’ll see reason unless it impacts their bottom line.
Re:
That would kill fair use, as claiming fair use in a counter notice would carry a very high risk of leading to expensive litigation.
Re: Re:
What does the quoted section have to do with fair use?
Frankly, if you threaten to take someone to court and fail to do so afterwards, it should at least carry some form of disincentive to prevent other people from making the same toothless threats. Otherwise you get the likes of Prenda who made demands for subpoenaed IP address information and then avoided taking most, if not all of those Does to court. Which the courts got tired of and ruled that they were committing fraud.
dmca abuse should be treated like running a stop sign.
Aka a dozen bullets.
I swear. With all the evil corrupt bs today I wish ceos faced public hangings for their behavior instead of getting off easier than a pedophile priest.
Try this..
Would it be interesting?
IF GOOGLE and Youtube, Fought back FOR the Creators?
#1 is you can be a fake Company in the USA, and no one would know, because GOOGLE wont look it up when you sign up as a Corp to run DMCA.
#2 YT/Google, does NOT verify companies that Advert threw them.–HOW do I know? I Go to their links, and Look for 2 things. A phone number and address. Then I search the Address. I found a company on the 8th floor of 221 backers street. England.(do you know that location?) Sherlock was NOT in.
Then I insert the Phone number. And generally the Location Code at the beginning, will be your best bet on location.
Now IF Google would track down the OVER USERS of DMCA, there is a regulation Against False Use of the DMCA.
And even if the account is faked, I THINK Google has a good chance of locating MOST people. ASK THE COPS.
Re:
It wouldn’t be interesting as it would result in Google/Youtube being bankrupted.
Under the current wording of the DMCA if sites want to keep their safe harbour defence then they need to action take-down notices, a failure to action them results in them now being liable, so the only take-downs they can reject are ones they are 100% sure aren’t valid (and no they cannot manually verify each request as they also need to action the notices promptly).
Even if the likes of Google did try to validate notices, there isn’t anything for them to validate against – the notice doesn’t need to come from the copyright owner just someone who is authorised to send the notice – this bit is also supposed to be under perjury but courts have made it nearly impossible to prove.