[AnthonyMouse]

> since the DMCA complaint submitter has already verified that those websites do, in fact, contain the copyrighted movie

Well no, actually, that they haven't is exactly the problem. One of the major problems with the DMCA is that it says this:

> under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In other words, the claim made "under penalty of perjury" is that you are "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed" and not that the links you allege are infringing actually are infringing.

Meanwhile claims have been known to be filed based on generic searches, e.g. submitting a DMCA claim for every link that shows up in search results for the title of the movie even when it's a generic phrase also used in other contexts, or wasn't quoted so it turned up results where those words (or their synonyms!) appear in any order anywhere on the page. And looking at the DMCA complaint used to allow you to not only find those results that had been illegitimately removed, but also identify that that has happened and then have the ability to object to it in various ways.

[gpm]

As far as I'm aware no court has ever agreed with your interpretation of the wording of the DMCA. Do you have a source on it being correct (which I definitely could have missed) or are you just giving out questionable legal opinions as if they are fact?

The best I can find for someone trying to raise that interpretation in court is when warner bros tried to argue it here [1]. That the motion was denied without prejudice in a brief order here [2], to be re-raised at trial if necessary, and then it looks like the case was settled before it went to trial or the issue was raised again.

[1] https://www.documentcloud.org/documents/835805-184407656-war...

[2] https://www.courtlistener.com/recap/gov.uscourts.flsd.373206...

[dragonwriter]

> As far as I'm aware no court has ever agreed with your interpretation of the wording of the DMCA

As far as I know, no court has every disagreed with that reading, which is simply the plain meaning of each of the words in the statute.

From the day the text was proposed, the fact that the only thing thar a DMCA takedown required to be sworn under penalty of perjury was that the complaining party represented a rights holder has been a frequent point of criticism.

> The best I can find for someone trying to raise that interpretation in court is when warner bros tried to argue it here

No, WB was not arguing that point, they were arguing that a hosts DMCA takedown notice form which purported to require additional certifications to be made under penalty of perjury was invalid because private parties can't just add “under penalty of perjury” without the legal requirements of perjury being satisfied and expect it to have legal effect. The host in that case agreed that what it tried to make under penalty of perjury was beyond what was required in the statute, but argued that the form did, in fact, have effect. IOW, the base requirements of the law weren't in dispute, the effect of a private form as to what was under penalty of perjury was I dispute.

[ikeboy]

>From the day the text was proposed, the fact that the only thing thar a DMCA takedown required to be sworn under penalty of perjury was that the complaining party represented a rights holder has been a frequent point of criticism.

This is wrong. Perjury also applies to having a good faith belief in the infringement.

>The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing. This requirement is not superfluous. Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed. We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed.

Perfect 10, Inc. v. Ccbill Llc, 488 F. 3d 1102 - Court of Appeals, 9th Circuit 2007

>A copyright owner who submits a takedown notice must include a statement, under penalty of perjury, that she has "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner." Id. § 512(c)(3)(A)(v)-(vi).

Hughes v. Benjamin, Dist. Court, SD New York 2020

[AnthonyMouse]

> The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing.

You're citing ambiguous language in a case that wasn't actually about perjury to begin with.

Possible valid reading of that sentence: "The DMCA requires a complainant to declare that he has a good-faith belief that the use is infringing, and under penalty of perjury, that he is authorized to represent the copyright holder."

> Hughes v. Benjamin, Dist. Court, SD New York 2020

This is a district court case which means it isn't binding precedent for other courts, and likewise doesn't appear to be a perjury case.

It would be nice if people got charged with perjury for making false DMCA claims. I still haven't seen any evidence of that happening.

[ikeboy]

I responded to a comment saying no court has ever disagreed with a reading saying perjury only applies to the authorization part, with two examples showing otherwise. As far as I know, every court to have considered the issue has said that perjury applies to both parts. None of them were actually considering a perjury case, correct. Perjury prosecutions are extremely rare.

Re your claim of ambiguity, read through the rest of the decision. It explains the rationale of the perjury requirement.

>We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed.

Much harder to read this as you propose.

Both cases are obiter dictum, since it's not relevant to the ruling. But they provide a strong indication of what a court ruling on the perjury issue directly would say, and they would certainly be persuasive authority.

[AnthonyMouse]

> Much harder to read this as you propose.

It has the exact same ambiguity. They even put the same comma between "under penalty of perjury that he is an authorized representative of the copyright owner" and "that he has a good-faith belief that the material is unlicensed."

> Both cases are obiter dictum, since it's not relevant to the ruling. But they provide a strong indication of what a court ruling on the perjury issue directly would say, and they would certainly be persuasive authority.

This was kind of my point. Having to bring in some dicta from unrelated cases because there are no actual perjury cases to cite pretty well implies that there are no teeth in the perjury requirement one way or another.

It's not as if there have been a lack of fraudulent DMCA claims to prosecute either.

[AnthonyMouse]

Those are literally the words in the statute. I'd be more interested if you could find a case upheld on appeal of someone being actually found guilty of perjury for filing a DMCA claim against non-infringing content. Because if it is never actually enforced then it's a distinction without a difference anyway. In either case fraudulent DMCA notices are rampant and the perpetrators face no consequences.

[ikeboy]

Courts have interpreted the statute to mean that perjury applies to a good faith belief in infringement as well. See two cases cited at https://news.ycombinator.com/item?id=23198236

[StanislavPetrov]

If this was meaningful we would have seen perjury prosecutions. We haven't, so its not.

[ikeboy]

There's no private cause of action for perjury. I agree that it would be nice if some ambitious DA would go after some of the people abusing DMCA or other infringement claims. Or perhaps someone in a state that allows private prosecution?

[gpm]

As far as I'm aware (and again, my knowledge of this field is far from perfect), the justice department has never charged anyone with perjury over a DMCA claim... period.

There have been civil lawsuits, for example Lenz v. Universal Music is famous for establishing that failure to consider fair use when filing a DMCA complaint constitutes misrepresentation under the DMCA. But these don't directly relate to perjury.

[1] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.

[AnthonyMouse]

> There have been civil lawsuits, for example Lenz v. Universal Music is famous for establishing that failure to consider fair use when filing a DMCA complaint constitutes misrepresentation under the DMCA.

That's misrepresentation rather than perjury. It's a different section. That changes it from criminal penalties to actual damages, but then what are the actual damages to Joe's Blog from having a link delisted from Google for a few days? A hundred bucks to make a federal case out of it? That'll be more trouble than it's worth to most everyone and then nobody does it and there are still no consequences. Meanwhile if you did have major actual damages, then what? You have a valid claim against a judgment-proof DMCA spammer who just files for bankruptcy?

Whereas perjury charges that had the spammer spending a few nights in jail and were regularly enforced by well-resourced government prosecutors might actually make a dent in the prevalence of this sort of thing. But that hasn't been the case in practice, one way or another.