[derefr]

> It also needs to not be some "DMCA Lite" contractual mechanism like Youtube's shitty ContentID system.

Why not? By my reading of the section you quoted, it stands independently from its parent sections; anyone who makes a legal claim of copyright infringement, or pursues action under the principle that such a claim exists, would seemingly be liable for damages if they're "knowingly materially misrepresenting" the facts of that infringement, whether or not in the context of a DMCA takedown claim.

Which, I mean, obviously; that's already the law, without the DMCA having to say anything additionally about it. If someone threatens legal action against you unless you do X, and you do X, and it costs you money, and then you find out it was a lie and they had no basis for their legal action — then you can totally sue them for damages, and you'll probably win. The DMCA just provides a very explicit basis for evaluating that particular situation without referring to any other bodies of potentially-conflicting case-law, so as to turn that "probably" into a "definitely."

[cratermoon]

> you can totally sue them for damages, and you'll probably win

Yeah, you can totally sue Disney or Warner Bros if they file a false infringement claim against you. You'll definitely not win unless you have hundreds of thousands of dollars to go up against their phalanxes of corporate lawyers.

The DMCA doesn't take into account unequal parties.

[derefr]

In theory that is a problem; in practice, the companies making knowingly false ContentID claims are 99% of the time small actors. Just like patent trolls are 99% of the time small actors.

Mind you, I say knowingly false. Big companies unknowingly make false claims all the time, because they don't know what-all they actually own — but you can't sue them for that anyway, since there's no mens rea there.

[yellowapple]

> but you can't sue them for that anyway, since there's no mens rea there.

"I don't know whether or not I own this intellectual property but I'm going to sic the DMCA on you anyway" is blatant negligence, at best. That our legal system doesn't consider that to be mens rea is one of a 3.7-mile-high stack of indictments against said legal system.

[kube-system]

> anyone who makes a legal claim of copyright infringement

The answer is right there, my emphasis added. YouTube’s internal mechanisms, a la ContentID, are not processes which are a part of the legal system. They’re corporate policies.

It is worth noting that this distinction is irrelevant to this article, however. As this article says this was a DMCA claim. So any potential false claims in this case do carry this potential penalty.

[derefr]

> The answer is right there, my emphasis added. YouTube’s internal mechanisms, a la ContentID, are not processes which are a part of the legal system. They’re corporate policies.

No, that's not what I meant. I meant, "any claim that can be interpreted in a court of law as being equivalent to saying you intend to sue for copyright infringement and have a legal basis to do so."

In the same sense that a handshake contract is still a binding contract, a regular letter telling someone that you're aware they're violating your copyright — and which doesn't explicitly disclaim any interest in pursuing legal action — can still be interpreted as a threat of legal action; and therefore, if proven to be based on knowingly false claims, as injurious perjury.

To be clear, it's not YouTube making this claim; it's the IP owner making the claim, when they register the IP in the ContentID system. Such a registration is equivalent in the spirit of the law to notoriously claiming 1. you are the IP's true owner, and 2. that you do not license use of your IP for use by others without your prior consent; and that therefore 3. you have an interest in pursuing action against all future unlicensed use of your IP, whether that action is using the DMCA, within the framework of the legal system outside of the DMCA specifically, or through extralegal means.

By analogy, consider what sort of verbal claim of intent to commit a crime (e.g. selling illegal drugs) is necessary in a police sting to trigger an arrest. You don't need to actually have committed the crime (i.e. hand the undercover officer any drugs, or even prove you have any drugs); you merely need to make it clear that you are actively working to set up the conditions necessary to carry out the crime (i.e. to agree/negotiate a price for the drugs you may have.)

In this case, a judge would basically be looking for the point of "stated intent to commit perjury." Which happens as soon as the ContentID for the video is registered!

[kube-system]

Yes, generally speaking legal threats which are not made in good faith can cross the line into being illegal, e.g. extortion. But that isn’t because they violate DMCA 512(f). And I think it a a bit of a stretch to say that abusing ContentID is a legal threat. The number of ContentID claims that result in legal action rounds to zero.

Had anyone ever successfully sued in response to a false non-DMCA copyright claim?