[noxvilleza]

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.

[dragonwriter]

> 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.

[noxvilleza]

> 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).

[dragonwriter]

> Realistically it’s extremely difficult for this to occur, and the costs often are extremely high (relative to the returns).

Exactly what you say should be available is in the status quo. What is it that you want that is different?

[jeff_tyrrill]

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.

[dragonwriter]

> 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.

Schemes (including those pre-existing under the common law, as was the case for defamation) giving strict liability for false statements have generally been found to conflict with the First Amendment, and in any case, I’ve literally never heard anyone suggest that the main, or even a major, problem with the DMCA safe harbor was too many takedown notices made with reasonable, good-faith belief in their accuracy that were nonetheless wrong.

So, to me, this seems like an probably-unconstitutional solution to a non-problem.

[jeff_tyrrill]

> I’ve literally never heard anyone suggest that the main, or even a major, problem with the DMCA safe harbor was too many takedown notices made with reasonable, good-faith belief in their accuracy that were nonetheless wrong.

I have seen the subject come up regarding organizations that carelessly bulk-send DMCA notices based on quick searches for possibly infringing material with little, or sometimes any, effort to confirm. Though I suppose that wouldn't be "good faith". But wouldn't that be a negligence standard? The law says "knowing".

> So, to me, this seems like an probably-unconstitutional solution to a non-problem.

As for the constitutional impediment, that may well be the case, but this is not a non-problem. If the DMCA regime shifts all the costs for a false statement (even if not a "knowingly" false statement) to the recipient (and/or their hosting provider), that's a problem. Maybe not a problem worth upending first amendment precedent over, but a problem nevertheless.