[pyre]

The basic idea is that for a provider (Github, Google, etc), to keep their Safe Harbour protections, they have to act like a 'dumb pipe' and just obey these notices. Just like how the phone companies trying to keep their Common Carrier status[1].

Even without the DMCA, if the service provider interjects itself into the dispute they risk legal action against themselves. For example, they could evaluate the claims wrong, and get sued to allowing actually infringing material to stay up.

It goes like this:

1. DMCA is filed by a person/entity with the service-provider.

2. Service-provider takes down offending content.

3. The person/entity that submitted the offending content now has the option to file a counter-notice with their service provider claiming that they feel/know there is no infringement. If they do file a counter-notice, then we continue on. If they don't file a counter-notice, then the story ends here.

4. The service-provider notifies the person/entity that filed the DMCA notice that a counter-notice was filed. The service-provider can now restore the content, but there is some weird stipulation that they need to wait something like 10 ~ 14 days before doing so.

5. The person/entity that filed the original notice now has to take legal action against the person/entity that they feel has infringed their copyrights if they want anything more to happen.

The party that files the DMCA notice stipulates that they believe that their work has been infringed under penalty of perjury.

[1] For a long time, people on the Internet believed that 'Common Carrier' provisions applied to ISPs, but it really only applies to phone companies. The Safe Harbour provisions of the DMCA are meant to give something similar for ISPs, though there are different rules.

[tripzilch]

Thanks for the explanation, two questions:

1) what happens with perjury? how severe is "penalty of perjury"?

If at point 5, LayerVault chooses not to take legal action (say, because they realized their mistake), did they just take some random piece of work offline for 10-14 days without any consequence?

What if they do take legal action and lose?

2) You say the provider has to act like a "dumb pipe" and just obey these notices. Does this also exclude basic sanity checks such as calling back the phone number on the notice to check whether the corporation in question actually filed this notice, or whether notice-filer actually exists, whether the phone number is actually connected to the corporation the notice claims to be from, etc? Because otherwise, it's just a matter of time until somebody is going to ... take down all the things.

I just checked Wikipedia on perjury and it says, "Statements which entail an interpretation of fact are not perjury because people often draw inaccurate conclusions unwittingly, or make honest mistakes without the intent to deceive. Individuals may have honest but mistaken beliefs about certain facts, or their recollection may be inaccurate, or may have a different perception of what is the accurate way to state the truth", I think this is pretty much the case for LayerVault. So they won't get penalty of perjury, because they did believe their work had been infringed ... even when it's based on a wrong idea of what constitutes an actual infringement instead of a "heavily inspired by" rip-off?

[pyre]

  | 1) what happens with perjury? how severe is "penalty
  | of perjury"?

Penalty of perjury probably varies from jurisdiction to jurisdiction. I'm not a lawyer, so I'm not entirely sure. I would presume that this would be at the Federal level since the DMCA is a Federal law, as is copyright law. According to Wikipedia[1]:

  > In the United States, for example, the general perjury
  > statute under Federal law classifies perjury as a felony
  > and provides for a prison sentence of up to five years.

So the person signing the DMCA takedown notice faces up to 5 years in prison and a felony conviction. That said, perjury convictions don't happen very often to my knowledge because they are so hard to prove beyond a reasonable doubt. Even if the claim looks like any normal person should have realized that it was bogus, it's possible for the claimant to attempt to say that he/she is dumber than the normal person.

  | If at point 5, LayerVault chooses not to take legal
  | action (say, because they realized their mistake),
  | did they just take some random piece of work offline
  | for 10-14 days without any consequence?

They opened themselves up to the possibility of perjury charges. The level of risk for them is debatable though. Other than that, there are no penalties to filing bogus DMCA notices. This is one of the many (valid) criticisms of the DMCA.

  | What if they do take legal action and lose?

Then whatever the courts decide at that point. Taking legal action doesn't really have much to do with the DMCA when it gets to that point. This provision of the DMCA was all about taking things down quickly so that the claimant has time to get the court system moving (rather than needing to wait a few days to take something down, time during which they could be financially taking losses[2]).

Someone taking actual legal action is pretty costly. If someone uses a DMCA takedown notice, and follows up with a lawsuit, then this process is working as intended, even if the claimant/plaintiff is in the wrong. Who is wrong, and who is right will be handled by the courts at this point.

The real danger is using the DMCA without filing a lawsuit. There are few penalties[3] for false claims, little cost and yet a big benefit to sending the takedown notice. The service provider has to comply, unlike with a C&D letter.

[1] http://en.wikipedia.org/wiki/Perjury

[2] Think someone posting a product prior to release. E.g. posting Windows 9 a week before the release date.

[3] Perjury is a serious penalty, but you're not punished until you're dragged to court over it (and convicted). Thus far, I don't believe anyone has been convicted of perjury over a false DMCA notice, despite some really egregious examples (e.g. one of the takedown notices sent to MegaUpload was for a "url" that was actually a paragraph of text containing something like 90+ words -- pretty obviously generated by an automated process, but signed off by a human).

[tobyjsullivan]

> did they just take some random piece of work offline for 10-14 days without any consequence?

As stated, in this case it's very unlikely there would be any consequences because perjury convictions are rare. However, it's worth noting that if any individual made a habit of this behaviour (false DMCA takedowns) then the probability of facing a charge would likely escalate.

[AliAdams]

Thanks for the full explanation. So are there no repercussions on the filing party unless the defending party seeks legal action? If the system is blind and you have a somewhat decent legal team you could surely hamstring your competition particularly on more subjective cases like this. 15 days can be a big hit (eg taking a site off google around Christmas)

[darkarmani]

Can you revoke a DMCA request you issue? This would be the reasonable way to handle mistakes. If the defending party, clears up all misunderstanding and proves to the other party that they made a mistake before 15 days is up, they should have to pull the DMCA request or suffer a larger burden of proof that they were acting in good faith.

[pyre]

Information obtained after the DMCA takedown request was issued shouldn't affect whether or not the request was made in good faith ex post facto. Currently there are no penalties (specified in the DMCA) for not withdrawing the request once it's become clear that it's bogus. There may be other ways under the law to get punished for a lack of action though. E.g. there may be case-law that states you can be penalized for a good faith action if you don't make motions to correct the mistake once you realize it.

[darkarmani]

Yeah, I understand how it is currently. I was saying it should (in a perfect world) be a much harder battle to prove you were acting in good faith if you are provided clear evidence that your request is completely wrong and you fail to redress the claim. The time period for a take down can cause a lot of harm to sites in exactly the same way that leaving up infringing stuff can.

[emn13]

Yeah, that waiting period is pretty ridiculous.

[dangrossman]

Unless the infringement is real, where the harm to the original creator can be just as great. That waiting period gives them time to go to court and get an injunction before a falsely filed counternotice puts the illegal copies back online, potentially ruining a product launch or otherwise devastating their brand/income from the original.

[emn13]

Even if the infrigement is real the waiting period makes no sense. What difference are those 10 days going to make? Not to mention, the risk to the counter-noticer is quite high since they'd be commiting perjury if they filed a false counter notice.

It's totally skewed- a false counter notice has a high risk and a false notice a low risk. The damage due to a false counter notice is likely small (it can't disrupt the real owners own usage; it's probably been online quite a while anyhow; and the infriger(s) can find other ways to do so if he really wants to - notice the quick Flat UI resuscitation). But the damage due to a false notice is potentially quite large since it imples complete loss of service (not just someone else getting a few days of free reign), and potentially loss of momentum, and the issue with free speech - which isn't critical, perhaps, but all else being equal I'd prefer we err on the side of open.

So given the skewed potential for damage (much greater for a false notice), and the skewed risk to the fraudulent/mistaken party (much smaller for a false notice), it's utterly obvious there should not be such a waiting period.

[ed209]

guilty until proven innocent.

thanks for the explanation, I never realised it was like this.

[pyre]

The entire point of the provisions was a way to immediately take down the content pending things like injunctions, court orders, filing lawsuits. If we're talking about a site hosting a pirated copy of Windows, for example, the Microsoft could be losing money with every copy downloaded while it takes them a week or so for the proper judicial procedures to be followed to get it taken down.

The DMCA has good and bad parts about it. It's like a "Good Idea, Bad Idea"[1] short:

----

Good Idea: Make it relatively easy and cheap to send takedown notices so that the 'little guy' without fancy lawyers on retainer can participate.

Bad Idea: Make it relatively easy and cheap to send takedown notices so that the 'big guy' can send out millions of them relatively easy.

----

Good Idea: Make it so that you only need a 'good faith' belief to file a notice, so that the 'little guy' doesn't accidentally get caught up in legal terms and procedures.

Bad Idea: Make it so that you only need a 'good faith' belief to file a notice, so that the 'big guys' can get away with filing obviously stupid takedown notices because their fancy lawyers on retainer can easily quash any perjury charges over bogus takedown notices.

----

Obviously none of the 'little guy' stuff was considered during the drafting of the legislation though. It's just a by-product. Legislators also never considered the implications of bad actors, because they were only thinking of large content companies (which would obviously never do anything bad). It's also worth it to consider that this was passed on 1998 (and drafted earlier). The Internet was not as pervasive as it is now (even though the dotcom bubble was in its early stages).

[1] http://en.wikipedia.org/wiki/Good_Idea,_Bad_Idea

[porker]

Is there any checking that the named submitter actually submitted it? Anything to prevent someone forging a DMCA? Daft to do no doubt, but still an option to damage a company.

[ryanpetrich]

Penalty of perjury.

[krichman]

As posted a couple of days ago it seems like the only penalty of perjury matter is that you are the copyright holder or can legally represent the copyright holder.

I also don't see what would stop someone from sending thousands of DMCA takedowns from TOR or some anonymising VPN, laying waste to an entire website for 10 days.

[lmm]

You're also required to have a good faith belief that the content is actually infringing. Not easy to prove you're not, but it's something.

The EFF's "dancing baby" lawsuit is still going; if they win that will set a stronger precedent for forcing copyright owners to first consider fair use.

[mariallery]

These kind of cases make me wonder, what ever happened to the common sense.. The (classical) Roman law was probably the best system the 'makers of law' ever came up to. After that, it only went downhill.

[asdfaoeu]

You have to provide contact information any sane webhost is going to check the information is actually valid before taking down the content.

[chii]

perhaps dmca takedown notices should stipulate that the party should leave some identifying information, so they can be traced back. I suspect credit card info would be a good one.

[kombine]

Thanks for a proper explanation!