[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.