Is the DMCA such a shitty law (questions about copyright in general aside), or are companies in shitty in just automatically responding to any DMCA allegation while refusing to invest anything in transparency/process/even-handedness? Basically if you are hit with a copyright or any other sort of terms of service violation, you are stuck spending time and energy trying to communicate with a black box.
Platformists say that this is necessary because transparency will allow bad actors to game the system, but their solution to this to make society into an oppressive panopticon; the cure is worse than the disease. Further, the ignore the degree to which the lack of transparency is already weaponized by bad faith actors.
Yes. In general, DMCA was written by rightsholder lawyers early in the internet's lifetime to maximize their power and minimize their responsibilities or damages if they abuse it. The prevalence of systems like Youtube's contentID allowing (often real, but also often flimsily alleged) rightsholders to nigh-unilaterally capture all value on the barest suggestion of unlicensed use is abysmal and calls for a compulsory license system more akin to radio, but rightsholders don't want that because compulsory licenses don't let them negotiate megaprofit deals on their own terms.
The anti-circumvention provsions are also a trash fire. DRM regimes are some hot consumer-hostile bullshit that have no (legal) alternative because the law is behind them and heavily weighted towards the needs and wants of major IP holders. Modern US copyright law is designed primarily to maximize profits and enforcement mechanisms for entrenched interests with little regard for anything that isn't, idk, Beyonce tier of actually needing that much licensing cruft.
There's some joke somewhere about ours being the first few generations to systematically deny ourselves access to our own culture because biglaw is more than happy to cut off its cultural nose to spite its face so long as the money train keeps flowing for the few elites that really benefit from the current system. We have a walled garden that will likely never fall because life is peachy if you're inside the garden already, and anyone outside can't compete with the financial and lobbying muscle of those inside it without operating in legal gray areas at best.
One single change could have made the DMCA better: Only allow copy "rights" to be assigned to real persons, and grant the original artist a permanent ownership (if I take a photograph I can sell or give you a license to use it, but not in a way that prevents me from continuing to use it). This prevents wealthy classes from financially bulling regular artists out of their own works.
For a large production like a film, that may mean splitting the rights up fractionally to thousands of different people. This would prevent the kind of unilateral rent seeking that squashes artistic creativity - getting a thousand regular actual artists and normal people to agree to sue a harmless fan project is much less likely than an executive suite.
In this case, "The players" have a direct influence on what becomes a part of the game, through lobbying, campaign finances and whatever other more shady shit corporations get up to in order to stack the deck in their favor.
At some point you have to realize the players are dictating the game, and then yeah, hate them.
You also have a direct influence through voting, etc. Besides, the "players" here (content hosting platforms) don't lobby anything, you beef is with large IP holders. But that's not the point.
The legislation is bad, because it neither accounts for normal actors that generally would always follow the passive path of least resistance, nor for bad actors that would actively try to abuse the system.
This is basically being upset over the effects of a natural law. You don't blame rocket for exploding, you blame the idiots who designed it that way. And you definitely don't blame the launchpad operators for poor rocket design - that's not even their job.
Law is not objective ideology sitting in context-free space. Law is ideology applied, and that very application made explicit. A law defines the very context it exists in.
So we can't just objectively ignore the failure of a law being applied, because a better application of that law must be defined in that law.
Even if a law defines a reasonable ideological mapping (expected behavior), it still needs to define a reasonable application of that mapping.
If, in practice, we see a law being abused, then the solution must be to change that law such that it isn't abusable anymore.
DMCA is an extreme failure, not in defining expected behavior per se, but in defining the domain for implementing behavior. The way DMCA is put into practice circumvents the very ideological behaviors it defined as its expectations, in nearly every case it is applied to.
A version of DMCA that "isn't shitty" would be incapable of such overt and widespread abuse. Clearly the version we have does not meet that criteria.
This is a totalizing the solution. Why not put pressure on a company, which is easier than getting the law changed? Corporate entities can be herded by other means than regulation. Not that we shouldn't consider changing the law, but that's one of the slowest and least responsive approaches.
> Is the DMCA such a shitty law (questions about copyright in general aside), or are companies in shitty in just automatically responding to any DMCA allegation while refusing to invest anything in transparency/process/even-handedness?
If the law enables said shitty automatic responses, then yes, the law is indeed shitty.
The broken part of the notice/takedown/counter-notice process is that a takedown requires prompt action, but a counter-notice requires a waiting period. Removing the waiting period and relying on damages to make the copyright holder whole seems like a more fair process.
I think the anticircumvention part of the DMCA is what's really shitty, but that's a tangent.
> DMCA mechanics just not works, seems like anybody can claim anything, the service provider is just forced to remove the content and in general not ask or nor the considering if the claims are real.
It works extremely well, if you consider who the beneficiaries are (who also happened to write it).
You are own a small forum or site. You get DMCA takedown, you take content down and are safe. Send notification to uploader. They disagree. You can put stuff back up. You are not liable for damages after this. And really shouldn't be expected to fight.
Now it is up to the two other parties to fight it out. This is where the system fails, because whole process is long and expensive. But so is any other legal action. Maybe consider fixing that reality first.
The safe-harbor part isn't bad. What's bad is that people can file an obviously bogus DMCA takedown request with zero repercussions.
Companies that host content do basically nothing to actually verify that the takedown request is even from a real person (nevermind the original copyright holder).
A better system would be one that allows the uploader to take the takedown issuer to court, and if the takedown request was clearly malicious and bogus then the takedown issuer would get a penalty. This approach would still allow a legitimate takedown request, but not be forced the issuer into taking a contested case to court.
> The safe-harbor part isn't bad. What's bad is that people can file an obviously bogus DMCA takedown request with zero repercussions.
The takedown process is part of, and only relevant to, the safe-harbor provision.
> Companies that host content do basically nothing to actually verify that the takedown request is even from a real person (nevermind the original copyright holder).
Because not complying with a correct-in-form takedown puts them outside of the dafe harbor. The uploader can, of course, challenge the false takedown (and the host can decide they don't care about safe harbor, but they won't in practice, nor will they normally care as much about safe harbor against claims by the uploader, so counternotice compliance may be less enthusiastic than takedown compliance.)
> A better system would be one that allows the uploader to take the takedown issuer to court
You can do this. A false takedown is false, damaging statement of fact and actionable as such, it may also be actionable as tortious interference, and a number of other things.
> Because not complying with a correct-in-form takedown puts them outside of the safe harbor.
Yes, I'm aware - I'm saying that the fact that the law allows truly unvetted takedown requests is silly - there should be some method to disincentivize dodgy takedowns.
> You can do this ...
Realistically it's extremely difficult for this to occur, and the costs often are extremely high (relative to the returns).
Not the parent, but one significant impediment to seeking redress for defective takedown notices is that there is only liability and attorneys fees recovery (at least under the DMCA; perhaps not under other areas of law) for knowing misrepresentations. It ought to be strict liability.
Lets remember that the DMCA is what allows providers like youtube to host content without being liable to the copyright infringement of its users. The takedown provision sucks, but its an essential law for the open internet to even exist.
The legal requirement to act instantly on the automatic presumption of the claimants being both right and acting in good faith with no evidence required isn't required to avoid liability. They could have required some higher standard of proof of ownership and as long as they followed the process, YouTube would have the same protection.
The system is specifically designed to be gamed by claimants.
It works the other way: it let's a site post user content without the user having to prove legal clearance for the content. Without this, there would be no sites allowing users to post nearly anything. In exchange for this freedom, the sites have to agree to some resolution format for when a copyright complaint is triggered.
So the system is not designed to be gamed by claimants. It's designed to give legal protections to hosts of sites. But this is most definitely a carveout to protect sites. Without the law no one would face to liability of hosting user generated content.
It's not necessarily true that a system that requires a claimant to demonstrate ownership also requires a user to pre-emptively prove it.
You could have a law that provides a safe harbor provision but also requires claims to be honest and backed-up to "some" level of confidence.
The law as it stands does appear to have the possibility of the penalty of perjury for intentional misuse, but, apparently, a comma means that apparently this is actually only applicable to a small part of the claim[1], and as far as I know has never done so. I do not know if this is because the law doesn't make definitions clear enough to demonstrate bad-faith in court (including that comma), or the legal system in general simply doesn't care to enforce the law.
You don't know your history. The DMCA was passed in 1998 with the express purpose of saving that fully functioning internet, as BBS systems and ISPs were being held liable for vicarious copyright infringement and contributory copyright infringement, making the business of operating an ISP legally and financially untenable. There was a realistic danger that no business would continue operating a public ISP under the existing legal framework after notable cases like Playboy Enterprises Inc v Frena. ISPs lobbied legislators in the 104th Congress (1995-96) for legislation that would preserve the open internet by shielding them from that liability for users' actions, and this lobbying directly resulted in the Online Copyright Infringement Liability Limitation Act (aka Safe Harbor) getting written into the DMCA.
> The DMCA was passed in 1998 with the express purpose of saving that fully functioning internet
Given this blatantly incorrect reframing of the DMCA as anything other than being intended to serve the copyright lobby’s interests, it’s hard to believe you’re arguing in good faith.
Yet not one of the biggest sites with user content was formed before the DMCA. Why didn't any of those fully functioning internet user sites dominate? Certainly other, non-user content sites from then were big.
Its almost as if providing safe harbor allowed such sites to grow......
Could the internet exist in a way that makes the RIAA/MPAA/etc happy without DMCA? Maybe not. But there’s no reason to assume their happiness is a requirement, or even desirable.
The internet was more than fast enough for copyright infringement. Copywritten books, images, and even music were commonly shared online before the DMCA was passed.
> Lets remember that the DMCA is what allows providers like youtube to host content without being liable to the copyright infringement of its users.
It arguably doesn’t actually allow sites very specifically like Youtube to do that, which is why YouTube has a separate and more draconian arrangement with major rights holders, created in response to previous litigation and litigation threats, and is also currently being sued by a variety of rights holders in a suit which hasn’t been easily been barred by the DMCA safe harbor.
Platformists say that this is necessary because transparency will allow bad actors to game the system, but their solution to this to make society into an oppressive panopticon; the cure is worse than the disease. Further, the ignore the degree to which the lack of transparency is already weaponized by bad faith actors.