[viknesh]

I think a meta point that is interesting here is that nobody could be more motivated to lobby for DMCA changes than large platforms like Google. Wrongfully targeted victims take out their anger on the platform, who thus far wrings their hands and says "sorry, it's the law, file a counterclaim if you want."

If it's enough of a problem for the platform (and not the victims), they can just pay off their congresspeople to write a law allowing DMCA abuse detection systems.

[mqus]

only in this case it mostly google which makes matters worse. They don't or badly check DMCA claims, don't monitor or publish the filers that are most frequently counterfiled against and to top it off: mostly use their own contentid system anyway which heavily favors ip holders.

[mjevans]

Google, nor any other corp, should be a Judge on a legal matter. That's why a Judge should be involved.

The entire idea of of the DCMA is just massively flawed and biased towards a world where only big publishers and big criminal enterprises exist.

[bruce511]

There are 600 million DCMA notices to Google along every year. Let's be insanely Conservative and assume there are a billion across all platforms.

Let's say a judge can review a notice every 5 minutes. 12 an hour, say 100 in a day. Say 20 000 per year. So 50 per million, 50 000 judges per billion requests.

Let's say a judge costs 100k per year. With say another 100k in costs. That's a price tag of 10 billion per year. I'm guessing the real number is likely well over double that.

So your plan to include humans, never mind actual judges who went to law school and so on, is, well a non-starter.

[0xffff2]

This is an argument to re-write the DMCA to prevent frivolous claims, and thus reduce the total number of claims. It's not an argument to throw up our hands and pretend that it's unreasonable to expect human involvement.

[s1artibartfast]

I don't think anyone is advocating for the status quo, but that doesn't mean human involvement is required either at an initial stage.

One proposal is that you should need full legal identification to file a takedown claim, and be on the hook for damages and penalties if is malicious. This would solve 99.999 of the problem.

[devrand]

> One proposal is that you should need full legal identification to file a takedown claim

How exactly? Require a government issued ID? What if it's fake? How would you validate that the ID is authentic? Even if it is authentic, how do you ensure that person has proper rights to issue the takedown?

> and be on the hook for damages and penalties if is malicious.

How? They could either not be who they say they are and/or not located in the United States. Like in this exact case, the two defendants are located in Vietnam. There's zero chance they're going to show up, so it'll result in a default judgement that will never be collected on.

The best suggestion I've seen so far is to require an escrow deposit on takedowns that is forfeit on fraudulent/malicious claims. However, this then raises the issue of who would determine that. Also, this deposit could potentially tie up a lot of money of legitimate claimants, becoming a financial burden for them and preventing them from issue further claims (which further adds to that burden).

[palmfacehn]

It needs to be easier to claim damages from inaccurate takedowns. Not only do you need to prove that the claimant knew his takedown was false, you also need to demonstrate "tortuous business interference".

A simple, fixed price minimum damage for inaccurate claims would solve this. No more robo-claims because a forum user mentioned keywords which a poorly written scraper matches to their (brokered) client's intellectual property.

[everforward]

Yup, that's about right for enforcing the current system of copyright, at the current level of enforcement, but with better than piss poor accuracy.

Frankly, we're over-enforcing copyrights, which is why this looks ridiculous. It doesn't make economic sense to try a sane system for most of these complaints because we'd be spending thousands of dollars on court costs to take down a webpage that gets 10 views per day.

There should be a nominal fee to file a DMCA complaint just to prevent wasting everyone's time with enforcement actions against pages that no one cares about. Call it $10 or maybe $50. If the site is causing damages to you, the $10 is worth it, but if they aren't causing the $10 of damage to make it worth filing then nobody else should have to deal with that paperwork either.

[qingcharles]

Petty technicality, but most jurisdictions in the USA don't require judges to have gone to law school, passed the bar or even know how to read.

[thomastjeffery]

You mean you actually have to pay a significant number of humans to run a giant monolithic content platform responsibly?!

But our profits!

[nerdponx]

Flood the system as a form of protest.

[advisedwang]

The DMCA does not give service providers leeway to check DMCA claims. Ignoring a correctly filed notification, even if it is garbage, prevents a service provider getting the relief from liability.

Source: 17 USC 512(c)

[nerdponx]

And "Big Copyright" prefers it that way. They are only interested in maximizing sensitivity (probability of taking down a true violation), they have no incentive to care about the trade-off with precision (probability that a taken-down violation is a true violation).

[kevingadd]

They process incorrectly filed notices too, for example notices that don't contain the information required. I had my content taken down once in response to a notice that just had a person's name and no other information (they were not the rightsholder)

[account42]

The service provider is only liable if an infraction has actually taken place. Checking DMCA claims means determining if that is the case. Service providers do have that leeway.

[withinboredom]

Yeah, and what is funny, is that it totally misses content on smaller artists while incorrectly IP on older, open-domain, classical music performed by smaller artists (think high-school bands performing Beethoven).

[rsingel]

Also the DMCA doesn't require Google to takedown sites based on obviously fraudulent DMCA notices.

It's just that Google would lose its liability shield if the claim turned out to be real.

[notatoad]

i thought that was the main flaw with the DMCA - it actually does require you to obey all properly formatted and submitted DMCA notices, regardless of how obviously fraudulent they are, until a court decides they're not fraudulent.

[dragonwriter]

DMCA doesn't require you to do anything, because it only shields you against liability you would otherwise have to the filer (or the owner whose agent they are), and if the notice is obviously not from thr owner or agent, or obviously incorrect about the content being infringing (or even existing), then there is no source of liability.

Yes, it's cheaper not to check, but its not required by the DMCA.

[s1artibartfast]

Honest question, Does the DMCA allow hosts to require proof before action?

If their liability isn't contingent on being provided valid evidence beyond a simple statement, then hosts don't have much of an ability to perform an assessment.

[dragonwriter]

> Honest question, Does the DMCA allow hosts to require proof before action?

The DMCA (well, the Safe Harbor provision under discussion, the DMCA has lots of other provisions that are irrelevant to the discussion) doesn't require action in the first place, so it necessasrily allows anything before action.

> If their liability isn't contingent on being provided valid evidence beyond a simple statement, then hosts don't have much of an ability to perform an assessment.

The DMCA doesn't create liability in the first place.

[sonicanatidae]

Part of that is due to how the platform plays games with appeals.

Who wouldn't be pissed off when legitimate content gets taken down, and the platform's response to evidence to the contrary is dumb looks and blank stares?

[thomastjeffery]

Google has another set of motivation: rights-holders are its primary customers.

It's pretty clear at this point which motivator has won Google's favor.