[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.

[dragonwriter]

> 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?

Both in terms of real problem and constitutionality I think a negligence standard is more defensible than strict liability.

> 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.

To be fair, the DMCA doesn’t shift any costs in that direction; in the absence of the DMCA safe harbor provision that the notice/counternotice process is part of, the notice recipient would be exposed to all the same costs as they can be under that regime, and the host would be exposed to additional costs. The safe harbor regime only gives the host an option which, if followed, removes any liability they would otherwise have, first (on the notice side) to the purported copyright owner, and second (on the counternotice side) to the target of the notice.

Which is why counternotice compliance is spottier than notice compliance: hosts are confident that, even before the safe harbor, they have no liability for an unnecessary takedown, so they don’t care about the part of the safe harbor tied to counternotice compliance.