[yebyen]

That's not how the certification of a DMCA request works.

All they have to certify under penalty of perjury is that they own the copyright to the works they claim have been infringed. They do not have to certify that the works identified are the works they claim to own.

Read that again if it doesn't make sense, the only part that they need to certify is that "I own XYZ", it's up to the parties responding to certify that "I'm not sharing XYZ, I'm sharing my Original Content PQR." Or whatever other affirmative defense they can muster.

The law is built to recognize three parties: 1) accuser, or, party owning copyright to a work; 2) respondent, or, the person accused of violating that copyright; 3) safe-haven, or, let's say YouTube, who facilitates this transaction by responding to accuser's claim with an immediate takedown, to avoid any culpability for respondent's potential infringing action.

Then respondent submits their defense after a period of time elapses, and finally YouTube seeing the defense can optionally restore the service for the accused person until a court order says they were infringing.

The law is designed to make the job of respondent harder than the job of accuser, since they are the one accused they should obviously have to take steps to prove their innocence </s>.

The only thing that accuser has to certify is that they own a copyrighted work.

If YouTube has the desire to take on some extra liability, they can reject obviously incorrect take-down requests, and if they are ever wrong, they get the luxury of potentially losing their safe-haven status and being lumped in with accused party #2 when the lawsuit goes on to the inside of a court room.

If the court decides the take-down request was reasonable and accurate, but YouTube did not take appropriate steps to honor it or respondent lied in the response, one or both of these parties can suffer the penalties (and potentially perjury charges for their bad-faith responses claiming non-infringement.)

[ObviousScience]

> 17.c.3.v A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

While it's not under perjury, WB is lying when they say they have a good faith belief in their notices, and the people damaged by them should sue the person who signed the notice for fraud or tortious interference, since the filing of the bad faith notice improperly interfered with your contracts with the complained to party.

The use of automated systems with no oversight is not a reasonable basis for the formation of a belief, and thus since WB is using that to base their beliefs on, they're not made in good faith -- they're intentionally trying to skirt that requirement because they want to externalize their costs.

I suggests suing the lawyer directly for his part in the conspiracy, since lying in legal notices isn't a (legal) duty he can fulfill for the company, so they're individually liable for their actions.

[yebyen]

I agree with you, it's in bad faith to forward notices from a machine that has proven to be unreliable without review, but I don't read that line the same as you did.

> has a good faith belief that use of the material in the manner complained of is not authorized

What doesn't this line say? It doesn't say that the material identified by the request is known in fact to be exactly the thing mentioned here as the "material" the copyright owner has not authorized the use of.

They only have to certify that they own some material and its use in the manner complained of is not authorized. This is a gaping loop-hole and it has been known since the law was penned. If you think my reading of this is obtuse, I don't think we can resolve it here between the two of us, but I did not make up this interpretation.

[ObviousScience]

I suppose my point is merely that I believe there are colorable arguments to bring forth to hold both WB and their lawyers accountable for these antics, if you look at the text of the law. Like many legal arguments that haven't been heavily litigated, the outcome is somewhat uncertain.

For various political reasons, the parties with standing are either too poor or have various incentives to cooperate with WB, and so we don't see how these arguments actually play out in courtrooms -- we just end up with a de facto system that favors big players.

This is frustrating, because people buy in to the argument that the law is the problem, when really, it's the politics of corporations that cause the problems surrounding takedowns, and that's the issue we should be addressing our energy towards. (Were, for instance, Google to have the opposite incentives for some reason, again, it wouldn't matter what the law said, the de facto system would tilt the other way.)

I don't think we actually disagree on that point, and I think I articulated it poorly the first time.