[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.