DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns

from the needs-real-punishment dept

Both Congress and the Copyright Office continue to explore possible ways to reform copyright laws, and one area of interest to a lot of people is reforming the whole "notice and takedown" process in the DMCA. The legacy players have been pushing for a ridiculously stupid concept they're calling "notice and staydown" in which they argue that once there's a notice for a particular piece of content, a platform needs to proactively block any copies of that content from ever being uploaded again. This is dumb and dangerous for a variety of reasons, starting with the fact that it would place tremendous burdens on smaller players, while locking in the more dominant large platforms that can build or buy systems to handle this. But, even more importantly, copyright infringement is extremely context dependent. The same content may be infringing in one context, while protected fair use in another. But a notice and staydown process would completely wipe out the fair use possibilities, and potentially violate the First Amendment (remember, the Supreme Court itself has declared fair use to be the "safety valve" that allows copyright law to fit with the First Amendment).

On the flipside, plenty of folks on the platform side as well as the free speech and civil liberties communities are quite reasonably worried about the widespread abuse of the DMCA takedown process to censor content broadly not for any legitimate reason at all. We've written tons of stories of DMCA takedown abuse for the purpose of censorship, and there remains no real punishment for filing false DMCA notices. The part of the law that covers false notices has been effectively neutered by the courts so far.

As we noted earlier this year, the Copyright Office is asking for public comment on the whole notice and takedown situation, and those comments are due on April 1st. I'm sure we'll see a bunch of submissions be posted publicly around then, but one that has already come in is from ITIF, a DC-based think tank that pretends to be pro-innovation, but has always been incredibly anti-internet on a number of issues. It was the think tank that more or less came up with the ideas that became SOPA. Its somewhat laughable submission claims that abuse of the DMCA takedown process is rare, but does so in a totally misleading way:
While some notable false negatives generate headlines, the occurrence of this type of error is actually quite rare. A study that analyzed the number of section 512 notices sent by the U.S. film industry during six months in 2013, found that of the 25 million notices these companies sent, the relevant online intermediary only received eight counter notices. A more recent review of the notices sent to Twitter shows a similarly low numbers of counter notices. From July to December 2015, Twitter received 35,000 notices, but only 121 counter notices. And during the prior six months, Twitter received 18,000 notices and only 27 counter notices.
But, arguing that the only way to see abuse is by counting counternotices is ridiculous. And it suggests either a deliberate attempt to mislead by the authors of the ITIF submission, or a complete ignorance of the DMCA takedown and counternotice process in reality. In so many cases of false takedowns, people don't file counternotices. The process is made to appear complicated and dangerous. Many platforms make it clear (correctly) that filing a counternotice can lead to you being sued in federal court, where you may face statutory damages awards up to $150,000 per work infringed. But the folks at ITIF are apparently so out of touch that they don't even realize that this might scare off the vast, vast, vast majority of people who are the receiving end of bogus takedown notices. I personally know a bunch of people who have received such notices and have no interest in going the counternotice path. The vast majority of abusive takedown stories that we get sent at Techdirt involve people who don't want to file a counternotice (and often, they hope that press coverage will fix the situation instead). To focus solely on counternotices as a metric for abusive or mistaken takedowns is ludicrous and, once again, should cement ITIF as an organization that has no credibility on this issue.

Even worse, the ITIF submission encourages more automated takedown efforts, saying that such systems are wonderful, and brushing off any concerns about false takedowns:
The best way to minimize the cost of sending and responding to so many notices of infringement is to use automated techniques. In particular, online service providers can use automated filtering systems that check content as it is uploaded to stop a user from reposting infringing content
In short: automated notice-and-staydown. Incredibly, in support of this, they point to a paper from researchers Joe Karaganis and Jennifer Urban entitled The Rise of the Robo Notice, which actually takes issue with such automated takedowns. And, with a bit of perfect timing, Urban and Karaganis, along with Brianna Schofield, have just released a new paper on the effectiveness of notice and takedown under the DMCA, that basically demonstrates how totally ignorant the folks at ITIF are in arguing for such takedowns (and in claiming that it rarely goes wrong).

The research report is long and detailed, and covers a variety of different areas, but on the issue of automated takedowns, they dug deeply into the numbers, and the abusive and faulty nature of automated takedowns is not minimal, as ITIF suggests, but massive and hugely problematic:
One in twenty-five of the takedown requests (4.2%) were fundamentally flawed because they targeted content that clearly did not match the identified infringed work. This extrapolates to approximately 4.5 million requests suffering from this problem across the entire six-month dataset.

Nearly a third of takedown requests (28.4%) had characteristics that raised clear questions about their validity, based solely on the facial review and comparisons we were able to conduct. Some had multiple potential issues. While these requests cannot be described as categorically invalid without further investigation, they suggest that a very substantial number of requests in the six-month dataset—approximately 30.1 million—would benefit from human review.

This “questionable” set included requests that raised questions about compliance with the statutory requirements (15.4%), potential fair use defenses (7.3%), and subject matter inappropriate for DMCA takedown (2.3%), along with a small handful of other issues.
In other words, problems with automated takedown systems are not a tiny issue. It's an epidemic that impacts millions upon millions of pieces of content, many of which may be protected speech that gets shut down due to abuse of the law. Later in the report, they show in graphical form the types of errors they saw in going through the Lumen Database (formerly the Chilling Effects database):
Notice that these are not small numbers we're talking about, but millions of faulty notices. So much for ITIF's claims that it's a barely noticeable issue. As the report notes: "the notice and takedown process, as practiced in our cohort of notices, imposes a high burden on those mistaken targets."

The report then condemns the use of automated systems, completely contradicting ITIF's recommendations (which, amusingly, were based on a misrepresentation of the same authors' work):
The rise of mass notice sending via automated systems raises immediate questions of accuracy and due process. Human scrutiny of underlying claims necessarily decreases when by-hand infringement detection, noticing, and review are replaced by automated systems. Understanding how this may affect the accuracy of takedowns was a major question in our research.

We found reason to be concerned when human review is replaced with a high degree of automation. The automated notices we examined in Study 2 were, in the main, sent by sophisticated rightsholders (or their agents) with a strong knowledge of copyright law, yet nearly a third of the notices raised questions about their validity, and one in twenty-five apparently targeted the wrong material entirely.
They also note that the lack of any consequences for those who send bogus notices means that there is no check on such notices and they're only likely to increase over time.

Furthermore, the authors note that the due process concerns raised by this system are very serious. In fact, they point out that (contrary to ITIF's silly interpretation) the lack of counternotices is a sign that the system is broken:
As a procedural matter, material that is targeted by a takedown request is often removed before the target is given the opportunity to respond; this was confirmed in interviews with OSPs and rightsholders. Yet all available evidence suggests that counter notices are simply not used. It is indicative of the problem that the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates. Given the high numbers of apparently unchallenged takedown mistakes that showed up in our quantitative studies, we would expect to see higher numbers of appropriate, good-faith counter notices if the process were working as intended.

Unfortunately, under current practice, there seems to be little chance of this changing. Study 1 OSPs described hesitating to encourage targeted users to send counter notices, even when it seemed appropriate, for fear of creating liability risk for targets and themselves. Unbalanced liability standards—fear of suit by copyright holders but not users—creates incentives for OSPs to take down material. Moreover, some of the main targets of large-scale requests—search services—have no service relationship with targets or any duty to inform them that links are being removed, making it highly unlikely that the target would know to send a counter notice. Further, as we discuss in recommendations, section 512 currently leaves unclear whether search engines are protected for putback like hosting entities, exacerbating the challenge. Overall, the counter-notice process’s procedural features make it difficult for OSPs to use it as intended.
The report also includes some fairly minor modifcations to the law -- including a stronger "under penalty of perjury" requirement (right now it really only applies to misrepresenting if you hold the rights to the copyright in question, rather than the rest of the notice), allowing service providers to put content back up immediately after receipt of a counternotice, and (most importantly) giving some teeth to the part of the law, 512(f), that covers bogus notices. They also suggest serious statutory damages reform, so that people issuing counternotices aren't scared off by that stupid $150,000 statutory damages number that always gets thrown around.

There's a lot more in the report, and it's well worth reading. Hopefully the Copyright Office (and Congress!) pay attention as they consider what to do about the notice and takedown process.

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  • icon
    That One Guy (profile), 30 Mar 2016 @ 10:13am

    "What, did you think we were going to /pay/ you to do our work for us?"

    In particular, online service providers can use automated filtering systems that check content as it is uploaded to stop a user from reposting infringing content

    Ignoring for the moment the point mentioned in the article, that whether or not something is infringing is hugely dependent upon context, which makes such a filtering system completely and utterly useless, unless they plan on creating and maintaining that filtering system on their own, and provide some guarantees that it's correct the overwhelming majority of the time(say a $500 penalty for each bogus claim), that rather sounds like yet another case of wanting someone else to do their job for them.

    It's not the problem or responsibility of service/hosting providers to play unpaid copyright cop, that little job is entirely on the owner of the copyright(s), and if they feel that it's too hard a job to do on their own that's their problem, they don't get to drag others in to help.

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  • identicon
    Finn, 30 Mar 2016 @ 11:59am

    Living in coo-coo land

    I run a small unrelated forum. Do you think I'm going to do what they suggest. Jog on..

    They are so stuck on this idea that they can usefully target enough people that they don't even have the most basic grasp on the size of the internet.

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    • identicon
      Anonymous Coward, 30 Mar 2016 @ 12:36pm

      Re: Living in coo-coo land

      They are so stuck on this idea that they can usefully target enough people that they don't even have the most basic grasp on the size of the internet.

      They grasp the size of the Internet, and the amount of creative people who can use it to make a living without their aid. That scares them, because unless the trend towards self publishing, or publishing via services like YouTube is brought under their control, they will become minor players, or cease to exist as publishers. Piracy, and the push for things like notice and stay down is simply their way of taking control over, or destroying the Internet.

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  • identicon
    Anonymous Coward, 30 Mar 2016 @ 12:03pm

    ..."notice and staydown"...

    Can we file these for DMCA notices?

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  • identicon
    Anonymous Coward, 30 Mar 2016 @ 12:11pm

    Ultimately it will come down to not how good your argument is, but how good your check is.

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  • icon
    That Anonymous Coward (profile), 30 Mar 2016 @ 12:21pm

    Notice and Staydown... Sure...
    HBO claimed HBO.com was infringing, nuke it.

    There is no penalty for sending bad notices, despite it creating expense for Google, lets be honest a majority of takedown notices target Google who doesn't actually host the content.

    They don't send notices to the correct parties.
    They don't use any common sense, claiming a single word match means it is infringing.

    They do not understand the technology, they just want someone to magically wave a wand and solve it and bear all of the costs for them. They have ramped up the numbers of notices because they want to say see we sent 2.2 kajillion notices and these pirates are still at it, and no have anyone point out that 2.1 kajillion of them were fatally flawed notices.

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    • icon
      JoeCool (profile), 30 Mar 2016 @ 3:59pm

      Re:

      They don't use any common sense, claiming a single word match means it is infringing.


      That's what got me the only time I've had files taken down (from mediafire). I had a PSP port of the old Mac emulator, Basilisk. Some paid flunky company was sending take down notices for ANY file they found with the work "basilisk" in it, regardless of what it was. This kind of indiscriminate targeting based on the name of the file is the main issue with automated notice systems, and why notice & staydown would kill the internet.

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  • icon
    Mason Wheeler (profile), 30 Mar 2016 @ 12:49pm

    The legacy players have been pushing for a ridiculously stupid concept they're calling "notice and staydown" in which they argue that once there's a notice for a particular piece of content, a platform needs to proactively block any copies of that content from ever being uploaded again. This is dumb and dangerous for a variety of reasons, starting with the fact that it would place tremendous burdens on smaller players, while locking in the more dominant large platforms that can build or buy systems to handle this.


    This is dumb and dangerous for a variety of reasons, starting with the fact that it turns our ideals of justice on their head. It has literally created a system in which a person can be legally punished for violating the law on accusation alone, which has always (until October of 1998 at least) been anathema to American jurisprudence!

    I would like to propose an alternative. I've even got a thematically appropriate name for it: "notice and then prove it or go away." The principle is very simple: if you want to take something down, you must first prove, in a court of law, that it shouldn't be up. If you can't do that, or if taking it down isn't worth the expense to you, then you should simply go away.

    ...otherwise known as "the rule of law," a complete no-brainer in any other context. Why is it that when copyright comes into the picture, people start embracing outright insanity without reservation?

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    • icon
      Ninja (profile), 1 Apr 2016 @ 8:32am

      Re:

      I actually support the staydown system. Providing it is retroactively applied to the MAFIAA URLs that were sent along with bogus DMCA requests. It would be interesting to see how long would it take to get blank pages when you search for anything on Google and other search engines.

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  • icon
    DannyB (profile), 30 Mar 2016 @ 1:01pm

    The fix is simple and we've said it for years

    This is been discussed to death on TechDirt.

    Put some TEETH into that penalty of perjury thing. Someone claiming to be the copyright owner but isn't, should get slapped with a gigantic penalty. I would think that even the crazy RIAA and MPAA would be behind that.

    Then make it a requirement that Fair Use be taken into consideration. If you're going to file a legal notice such as a DMCA takedown, then a human should at least look at it to be sure it is not obvious Fair Use. This would also prevent a copyright owner from claiming copyright on someone else's recording of nature sounds. Of course, I guess that could fall under the penalty of perjury thing of claiming to be the copyright owner when you are not.

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    • identicon
      Quiet Lurcker, 30 Mar 2016 @ 1:51pm

      Re: The fix is simple and we've said it for years

      While we're at it:

      1. Make fee shifting under 512(f) mandatory, plus the full RICO modifier. Someone files counter notice, sues and wins? They collect $450,000. No ifs. No ands. No buts. And no delays.

      2. Rights holder wants to issue a DMCA take-down notice? They post a $150,000 bond and cough up the paperwork to the court before they're allowed to file the notice.

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    • icon
      nasch (profile), 31 Mar 2016 @ 9:05pm

      Re: The fix is simple and we've said it for years

      I would think that even the crazy RIAA and MPAA would be behind that.

      Come now, you've hung around here long enough to know that isn't true.

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  • identicon
    Anonymous Coward, 30 Mar 2016 @ 1:06pm

    That report's cover page looks almost exactly like one of those cards you fill in for playing the lottery, which, absent owning a kennel full of copyright lawyers, you would need to win in order to take on the copyright industry. I wonder if the report's authors were that ironically aware?

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  • icon
    Almost Anonymous (profile), 30 Mar 2016 @ 1:20pm

    Youtube is proactive

    From what I've been reading, Youtube has already implemented "notice and staydown".

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  • identicon
    Anonymous Coward, 30 Mar 2016 @ 1:27pm

    Automated takedown notices should be considered fraudulent notices by nature since a bot can't swear anything under penalty of perjury. Only a human agent can.

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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 30 Mar 2016 @ 1:56pm

    Page 79:
    The dominance of Google notices in our dataset limits our ability to draw broader conclusions about the notice ecosystem. Google has characteristics that set it apart from many other services, including the use of form notices, automated triage systems, and a “trusted sender” program. Google’s dominant position in search and the extraordinary number of notices it receives also make it unusual. This makes the Lumen dataset useful for studying an important part of the takedown system, 215 but also means that the characteristics of these notices cannot be extrapolated to the entire world of notice sending.
    Details, details. But sadly that won't stop Mike from extrapolating to the entire world of notice sending. Such stretches of reality are his bread and butter.

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    • icon
      Mike Masnick (profile), 30 Mar 2016 @ 2:13pm

      Re:

      But sadly that won't stop Mike from extrapolating to the entire world of notice sending. Such stretches of reality are his bread and butter.

      Do you have a point? Or are you going to ignore the millions of actual bogus takedowns?

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      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 30 Mar 2016 @ 2:46pm

        Re: Re:

        Do you have a point? Or are you going to ignore the millions of actual bogus takedowns?

        The point is that your claim that this shows there's an "epidemic" is hard to take seriously when the report itself says that the data is "significantly skewed" and that it "cannot be extrapolated to the entire world of notice sending." Yet you naturally don't mention it. Nor do you mention anything about the study's questionable methodology. Why would you? When you like the results, the methodology is sound and the researchers are impeccable (and vice versa when you don't). And, of course, the report confirms that Google receives millions of actual legitimate takedowns, but you don't care about that. Furthermore, neither you nor the report say anything about the costs to authors and artists in protecting their works, nor anything about how piracy chills creative innovation. But you don't care about that either. Just another day at Techdirt.

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        • identicon
          ass hat detector, 30 Mar 2016 @ 4:23pm

          Re: Re: Re:found one

          You are disingenuous at best

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        • identicon
          Anonymous Coward, 30 Mar 2016 @ 4:29pm

          Re: Re: Re:

          You got some proof of them accusations? No, just another day in denial disneyland.

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        • identicon
          Anonymous Coward, 30 Mar 2016 @ 5:34pm

          Re: Re: Re:

          You see, for starters, those aren't valid notices; they are presumed "valid" notices that were never proven to be right because it's a judge or a valid authority (at the least and that's stretching things a bit, because you're censoring speech by default - infringing speech is still speech) the one who can confirm whether something is infringing or not. That's the right and duty our society gave them, not to Google or to any other OSP, nor to copyright holders.

          And yet, even if you do 1000000 things right, you aren't allowed to do anything wrong. And if you do, if you make a mistake in a job, then you're supposed to pay for the damages involved in it, plus a fine.

          That applies to every job out there. You screw up with a customer, and you're going to pay the damages. You sell rotten food on your restaurant, and you got hell to pay there, and that's if they don't close your restaurant...


          But you see, copyright holders are living in some sort of cloud (lobbied and bribed thoroughly) where they hold everyone else except themselves responsible for their actions, but they are allowed to screw up using an automated system because of expediency, or because they got to "defend their rights".

          Tell me if you would allow McDonald's to serve you a wrong order because their automated system messed up. Hah! Or get you a faulty mobile phone because the robot made one of those rare mistakes that come from a factory.


          In short: you can do a lot of things right, but don't have the right to be wrong. And if you make a mistake, then pay for it. The same as you're asking from everyone else.

          But well, considering how copyright has been promoted through history (through bribes, lobbying and corruption, mostly, plus lots of backdoor deals); they never did things right for starters.


          And regarding piracy and creativity... to be honest, that has been thoroughly discussed in other threads. Go there to talk about it.

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          • icon
            Whatever (profile), 31 Mar 2016 @ 5:11am

            Re: Re: Re: Re:

            My feeling is that an accidental notice in error should suffer the exact same punishment as someone intentionally posting a copyright video, knowing they are breaking the rules.

            The problem is that the anti-copyright types wants the punishment for violating copyright to be nothing, but claiming copyright and making an error on your 1 millionth notice to be a capital crime. It's times like this that you can see just how extremist their points of view are.

            Notice and staydown is complex, but it would go a long way to stop the need for endless numbers of automated notices.

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            • identicon
              Anonymous Coward, 31 Mar 2016 @ 8:28am

              Re: Re: Re: Re: Re:

              So we've had punishments meted out for people who violate copyright.

              When has a copyright holder been punished for DMCA and copyright notice abuse?

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              • icon
                Whatever (profile), 31 Mar 2016 @ 9:58am

                Re: Re: Re: Re: Re: Re:

                The punishments for copyright violation are rare compared to the number of actual violations going on. It's pretty much on par with major lottery wins.

                "When has a copyright holder been punished for DMCA and copyright notice abuse?"

                There are so few true abuses of DMCA that rise to the levels prescribed in the law (knowingly issuing a false claim). It's a sufficiently high hurdle that few have even approached that level. Even some of what Techdirt would consider abuses are more people misinformed about the uses of DMCA, and not people intentionally misusing or making false claims. Those are truly rare, a very very small percentage of overall valid claims. There are claims that are rejected, there are claims that are not right (for various reasons) but very few that are intentionally bad.

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                • icon
                  Mike Masnick (profile), 31 Mar 2016 @ 10:03am

                  Re: Re: Re: Re: Re: Re: Re:

                  There are so few true abuses of DMCA that rise to the levels prescribed in the law (knowingly issuing a false claim). It's a sufficiently high hurdle that few have even approached that level. Even some of what Techdirt would consider abuses are more people misinformed about the uses of DMCA, and not people intentionally misusing or making false claims.

                  So at the very least you admit that there's a massive double standard here: you can only be found to have abused the DMCA if you do so "knowingly" (and you leave out that the standard used by the court here requires a ridiculously high bar), but for infringement, accidental or unintentional infringement still subjects you to MASSIVE statutory damages.

                  And you don't have a problem with this?

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                  • icon
                    Whatever (profile), 31 Mar 2016 @ 10:02pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "And you don't have a problem with this?"

                    Not at all. DMCA was created in no small part to handle the concept of accidental or unintentional copyright violation, so that a violation didn't lead directly to a lawsuit, which was previously the only way to deal with the issue.

                    Imagine for a second that rather than a DMCA notice about your Youtube video with Michael Jackson music in it, you instead got served for a million dollar lawsuit. Imagine the costs related (for both parties) in having to take this step. If you want to talk about "chilling effects", you should consider what the lack of the current DMCA law would do.

                    "for infringement, accidental or unintentional infringement still subjects you to MASSIVE statutory damages"

                    Bullshit. Under the DMCA, you are not liable for massive statutory damages unless you ALSO ignore the DMCA and leave the offending content up. It cuts both ways, DMCA is actually so lenient for offenders that it has encouraged and created entire online business models predicated on "okay until we get a notice" rather than "okay because I have the rights". DMCA is a law that is very heavily biased towards protecting offenders, and not rights holders.

                    You know it, you just hate to admit it.

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                    • icon
                      Mike Masnick (profile), 1 Apr 2016 @ 12:21am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I gotta hand it to you, Whatever. As you've done for years, through all your different identities, the one thing you do better than any other troll is state with absolute confidence things that are absolute bullshit. It's a skill. You should be proud of it.

                      Not at all. DMCA was created in no small part to handle the concept of accidental or unintentional copyright violation, so that a violation didn't lead directly to a lawsuit, which was previously the only way to deal with the issue.


                      This is not even remotely close to true. DMCA 512 had nothing to do with that at all, but was solely about dealing with the intermediaries and their responsibilities. And, it shows an astounding lack of understanding of the history of copyright law prior to the DMCA to claim that the only way to deal with it prior to that was a lawsuit. Because that's not true. Under earlier court rulings, liability had been placed on intermediaries, meaning that those intermediaries were actually incentivized to proactively remove content. The DMCA set up a much more reasonable process to prevent overaggressive removals from continuing.

                      Imagine for a second that rather than a DMCA notice about your Youtube video with Michael Jackson music in it, you instead got served for a million dollar lawsuit. Imagine the costs related (for both parties) in having to take this step. If you want to talk about "chilling effects", you should consider what the lack of the current DMCA law would do.

                      You are conflating the intermediary with the actual infringer. It suggests someone who knows nothing of the DMCA or what it actually says.

                      Bullshit. Under the DMCA, you are not liable for massive statutory damages unless you ALSO ignore the DMCA and leave the offending content up. It cuts both ways, DMCA is actually so lenient for offenders that it has encouraged and created entire online business models predicated on "okay until we get a notice" rather than "okay because I have the rights". DMCA is a law that is very heavily biased towards protecting offenders, and not rights holders.

                      Again, you confuse intermediaries and infringers. And you say it so confidently. Actual infringers are not protected by the DMCA. Yes, they are subject to massive statutory damages no matter what the DMCA says because they're not protected by the DMCA's safe harbors. Only intermediaries are.

                      And saying it was biased towards offenders is laughable. The law was written by the RIAA.

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                      • icon
                        Whatever (profile), 1 Apr 2016 @ 5:52am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        It's endlessly fun watching you tie yourself in knots not to concede a single point. It's almost laughable.

                        "And saying it was biased towards offenders is laughable. The law was written by the RIAA."

                        Yes it was. Who wrote it doesn't indicate it's bias IN ACTION. See, you are so stuck on the technical "they wrote it, it must be in their favor" that you seem to forget how it's played out. DMCA essentially created the concept of "use it until you get a notice". Before DMCA, using it would get you an expensive lawsuit, and not just a notice.

                        "you confuse intermediaries and infringers."

                        No, actually you are busy TRYING to mix the two to avoid the point. DMCA was created with the concept of being able to deal with widespread, low level infringement (and larger infringement as well) by creating some responsibility for all parties in the distribution of illegal materials. DMCA is aimed at the infringing party AND their service providers. It gives rights holders more powerful tool to get the desired results (having infringing material taken down) without having to play whack a mole with anonymous posters or websites with no servable address. It creates responsibilities for service providers to take action in absence of action from the infringing party.

                        "You are conflating the intermediary with the actual infringer. It suggests someone who knows nothing of the DMCA or what it actually says."

                        Again, you can go on and on about it, but I speak of the application of the law, not some theoretical "I read the congression crib notes" crap. The intention was to make it easier to stop infringement and get ISPs to take action while giving them a way to avoid prosecution. In application, it means that sites like Youtube and such can run infringing material until they get a notice.

                        It should be noted that you are confusing things. I said "Imagine for a second that rather than a DMCA notice about your Youtube video with Michael Jackson music in it, you instead got served for a million dollar lawsuit. Imagine the costs related (for both parties) in having to take this step. " that assumption being that the end user can be identified. There would be liability for all concerned (including YouTube) but the user who posted that material would be on the hook for a really big lawsuit. DMCA negates that, gives the user an out and let's YouTube skate away with little or no liability on any level.

                        "DMCA 512 had nothing to do with that at all, but was solely about dealing with the intermediaries and their responsibilities."

                        You should consider the entire law and it's implications with the greater copyright law. It's not just about intermediaries. Yes, intermediaries get the greatest benefit (and new infingement based business models as a result), but in the end the DMCA is all about dealing with copyright infringement without having to START with a lawsuit.

                        So really the only thing laughable is trying to argue that an entire law is only about one narrow thing, when it's really not. I am consistent, I will call out your crap every time!

                        reply to this | link to this | view in chronology ]

                        • icon
                          nasch (profile), 1 Apr 2016 @ 6:49am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          DMCA essentially created the concept of "use it until you get a notice". Before DMCA, using it would get you an expensive lawsuit, and not just a notice... DMCA was created with the concept of being able to deal with widespread, low level infringement (and larger infringement as well) by creating some responsibility for all parties in the distribution of illegal materials.

                          Make up your mind. Does it create more liability for intermediaries, or less?

                          reply to this | link to this | view in chronology ]

                        • identicon
                          Anonymous Coward, 1 Apr 2016 @ 7:19pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          "How dare you not take me seriously the way I want you to when I've been trolling you for years! How DARE you!"

                          reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 31 Mar 2016 @ 1:20pm

                Re: Re: Re: Re: Re: Re:

                Want redress? File a suit just like copyright holders have to.

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Mar 2016 @ 5:51pm

          Re: Re: Re:

          You mean when like the MPAA lied about their piracy figures, and later openly admitted to exaggerating them for effect?

          reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 30 Mar 2016 @ 6:00pm

          Re: Re: Re:

          And, of course, the report confirms that Google receives millions of actual legitimate takedowns, but you don't care about that.


          I don't care about the legitimate takedowns myself.

          The legitimate takedowns are not prior restraint of speech. The bogus takdowns, on the other hand, can and usually are unconstitutional prior restraint (IMHO, IANAL), being that the DMCA is law backed by the might of the US government.

          The First Amendment should always trump copyright law when they collide, if you ask me.

          reply to this | link to this | view in chronology ]

          • icon
            Ninja (profile), 1 Apr 2016 @ 8:47am

            Re: Re: Re: Re:

            Even if you ignore the 1st Amendment issues there are other problems. Consider for a moment that culture is built upon culture. If you kill off something unfairly you are depriving culture from more content. And this applies both for creators (we know that culture doesn't happen in a vacuum) AND people consuming such culture. Just recently there was some entire Star Trek content that would be made by fans that was killed before birth. Nobody will ever see it. Because of copyright abuse. This is just a drop in the ocean of the unborn culture due to copyright.

            reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 31 Mar 2016 @ 7:01am

          Re: Re: Re:

          It certainly provides humor tho, amiright? Masnick is already well aware that hashes could be used effectively for this issue, but due to his pathological dishonesty, you won't see that discussed.
          Ho hum. He needs to go back to carrying Google's water on the encryption issue.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Mar 2016 @ 1:26pm

        Re: Re:

        "Millions of actual bogus takedowns".

        LOL. You are truly a delusional, pathological liar.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Mar 2016 @ 5:14pm

    time and time again has shown that the most ardent supporters tend to also be the biggest violaters.

    The whole we can do this but you are not allowed to attitude they have really makes it hard to have any sympathy for those trying to "protect" their ip.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Mar 2016 @ 8:20pm

    give a mouse a cookie .....................................

    reply to this | link to this | view in chronology ]

  • icon
    OldGeezer (profile), 30 Mar 2016 @ 11:26pm

    An example of how wrong content ID can be: A guy running for mayor in a small town asked a friend to make a campaign ad for him. The result was hilarious and went viral. The Tonight show with Jay Leno had a regular feature where they would air funny YouTube videos. They showed the ad without even notifying him. When a friend told him about it he thought that was great until he got a DMCA notice from NBC. They used HIS video without permission but he got the takedown.

    reply to this | link to this | view in chronology ]

    • icon
      Vikarti Anatra (profile), 2 Apr 2016 @ 6:13am

      Re:

      >An example of how wrong content ID can be: A guy running for mayor in a small town asked a friend to make a campaign ad for him. The result was hilarious and went viral. The Tonight show with Jay Leno had a regular feature where they would air funny YouTube videos. They showed the ad without even notifying him. When a friend told him about it he thought that was great until he got a DMCA notice from NBC. They used HIS video without permission but he got the takedown.

      Doesn't it mean that NBC IS guilty of perjury? They lied they have copyright to this video after all.

      reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 31 Mar 2016 @ 12:03am

    Makes no sense to us

    Article: Many platforms make it clear (correctly) that filing a counternotice can lead to you being sued in federal court, where you may face statutory damages awards up to $150,000 per work infringed. But the folks at ITIF are apparently so out of touch that they don't even realize that this might scare off the vast, vast, vast majority of people who are the receiving end of bogus takedown notices.

    "But, but, but, that threat wouldn't scare our $50 billion corporate clients and their 500-member Ivy League law firms. Why should it scare anyone else?"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Mar 2016 @ 12:40am

    Copyright takedown laws also create an anti-competitive business environment by greatly favoring large, well-connected corporations over small startup companies. Small companies not only lack the considerable financial resources needed to deal with the takedown onslaught, but are also much more susceptible to becoming victims of overzealous police enforcement action.

    Just a week ago, police busted a small Usenet provider in France, seizing the servers and therefore shutting down the operation. While anyone who knows anything about how Usenet works would know that this company's servers are only a small part of a worldwide chain of public postings that make up Usenet (user-generated content that is shared across all Usenet servers worldwide)

    It's likely that Holllywood was infuriated by Newsoo's insistence on only responding to mailed paper copies of copyright infringement claims, rather than electronic correspondence. Most Usenet providers that carry binary newsgroups implemented automated takedowns years ago to save money (and keep the lawyers at bay) by allowing copyright claimants to effectively delete content off the usenet provider's own servers directly. Only the largest providers can even afford to employ shifts of staff 24/7 to handle copyright claims.

    Because a tiny one-man operation like Newsoo dared to follow its own interpretation of the law instead of blindly bowing down to Hollywood dictate, the result was virtually inevitable, the "head on a pike" for all to see and fear. It's no wonder that in the last decade the binary usenet provder industry has shrunk from many dozens of small providers to just a handful of large ones.

    reply to this | link to this | view in chronology ]

    • icon
      Whatever (profile), 31 Mar 2016 @ 7:44am

      Re:

      Copyright takedown laws also create an anti-competitive business environment by greatly favoring large, well-connected corporations over small copyright holders. Small copyright holders not only lack the considerable financial resources needed to deal with the infringement onslaught, but are also much more susceptible to becoming victims of overzealous 4chan enforcement action.

      Being a copyright holder isn't all sunshine and roses. Endlessly having to send notices to sites over and over again quickly can become a full time job, and without considerable financial resources, it's unlikely that you can fight a major corporation (like a youtube or twitter) in a copyright lawsuit.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Mar 2016 @ 5:36pm

        Re: Re:

        Yeah, because using an automated bot to file millions of claims, then scream "LOL, GOOD FAITH" when you fuck up, is so difficult.

        reply to this | link to this | view in chronology ]

        • icon
          Whatever (profile), 31 Mar 2016 @ 10:04pm

          Re: Re: Re:

          When you consider the volume and scale of the violations, manually processing and verifying every take down item would be cost prohibitive and would likely have a chilling effect on copyright holders rights. It's already a huge expense point for many to protect their rights, and making it a more manual job would make it even worse.

          The playing field isn't level, and even automation isn't enough to keep up with the violations.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 1 Apr 2016 @ 4:56am

            Re: Re: Re: Re:

            When has that stopped copyright holders? They consistently go after people they know can't be responsible or ardent downloaders. Malibu Media is probably the worst offender, and this sort of sentiment doesn't convince anyone that other copyright holders don't think the same way. Why does everyone else, guilty or otherwise, have to pay up just because you don't want to put in the effort?

            reply to this | link to this | view in chronology ]

          • icon
            Gwiz (profile), 1 Apr 2016 @ 6:36am

            Re: Re: Re: Re:

            When you consider the volume and scale of the violations...


            Wouldn't that indicate that the business model we've enshrined in law as "copyright" needs a major overhaul in this day and age where everyone walks around with copying machine in their pocket?

            If you want the masses to respect copyright, then perhaps we need to change our copyright laws in ways that will create that respect. With copyright terms beyond my great-grandchildren's lives, the lack of public domain replenishment and unfathomable penalties, it's no wonder that many do not respect copyright laws.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Apr 2016 @ 9:27am

    I work for a hosting provider and spend a significant part of my day processing DMCA notices.

    We average about 100 DMCA notices per month, and only a small fraction of those are coming from the likes of the *AAs or major publishers. And, at least in our case, the notices coming from those entities are generally pretty accurate. The more common complaints we see are:

    *Blogger sends DMCA notice because another blogger copied their post.
    *Small business sends DMCA because another small business in the same field has bullet points discussing what the business does or where it services, and those bullet points are similar/identical on both sites. Or, both sites are using the same WordPress theme and therefore the site's "look and feel" is similar.
    *Business sends DMCA notice because a photo of the product was used in a negative review.
    *Business sends DMCA notice because a site is linking to the business's site and it's negatively impacting their SEO.

    There are absolutely legitimate uses of the DMCA process, and I do see many, many cases where the takedown is appropriate. However, I also see many, many cases where it isn't. If the system was working properly, there should be far fewer inappropriate notices than there are.

    Now, don't even get me started on trademark takedowns. If you thought the DMCA was bad, you have no idea.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Apr 2016 @ 7:22pm

      Re:

      You'll never hear Whatever talk about this at all, of course, because clearly someone who works for a hosting provider and actually experiences it would know even less than his cursory claims.

      reply to this | link to this | view in chronology ]


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