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Comment by eridius | Hacker News Reader

My understanding is there's supposed to be some penalty for submitting false DMCA complaints (assuming they weren't sent in good faith; it's hard to believe this was sent in good faith given that the complaint had no basis whatsoever in reality). Has anyone ever actually been penalized though?

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The enforcement mechanism relies on the receiving party (Twitter in this case) suing the fraudulent DMCA sender. This is troublesome, as these platforms have very little motivation to do anything beyond discarding fraudulent DMCA notices, and users of the platform that are the target of the DMCA notice might not have standing to take this matter into their own hands (IANAL).

Establishing certain mass-DMCA senders as often fraudulent would be risky to do without at least a summary judgment, so YouTube, Google, Twitter and ilk provide no pushback against repeat DMCA notice fraudsters as any perceived pushback could land them in court.

Wait, it's up to Twitter to sue, not the person whose content was taken down? So there's no recourse at all for the actual victim?

That has been my interpretation of the DMCA notices I've received in the past, its an issue between the host of the content and whoever sent the DMCA notice.

This is incorrect - it's an issue between the copyright owner and copyright infringer, with the content host only acting as a relay.

Under Section 512 the only responsibility of the service provider is to remove the content, relay the notice to the actual copyright infringer, and allow them to file a counter-notice.

From there if the counter-notice isn't accepted by the copyright owner, they would have to file a lawsuit with the copyright infringer.

> From there if the counter-notice isn't accepted by the copyright owner, they would have to file a lawsuit with the copyright infringer.

But can you as the alleged infringer sue the claimant?

Yes but only for damages.

But if the platform ignores the DMCA takedown, the alleged infringer will never know, and so cannot sue.

I think the original question is if the platform can sue the person sending the DMCA takedown, for some kind of harassment. Because the platform itself will also investigate before taking content down.

As long as the platform follows a proper DMCA takedown, they cannot be sued for infringement. If, however, the platform ignores the DMCA takedown, they lose the protection they'd otherwise keep under the law and can themselves be held liable for the infringing copyright.

Ah, so they need to act as a relay. Now I get it. Thanks for the explanation.

The problem with the DMCA is that the platform has to immediately take down the content or they lose the protective aspect of the DMCA- I think (though not a lawyer) that more or less any analysis immediately strips protection.

Essentially the belief is that DMCA would never be abused for any reason so you need to penalize the platform but not the submitter.

Yes, there is such a provision and it's been enforced at least once:

https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold....

The penalty wasn't big enough to have much of an impact on anyone involved, after lawyer fees. But damages were awarded.

EFF's legal director is quoted in that Wikipedia article discussing that case, so I presume EFF has either a legal or a strategic/PR/financial reason why they can't use that provision in this case.

I'm not a lawyer myself, though I have attended a year or so of law school and I have read the text of the DMCA.

There's an "on penalty of perjury" clause in the law (if memory serves, it's part of a clause which must be present for a takedown notice to be valid). In practice, David often can't afford to sue Goliath.

I don't think I've heard of a single civil or criminal case under the DMCA's false notice provisions. It's effectively hot air.

https://www.theverge.com/2015/3/9/8175491/wordpress-automatt...

Even if David could afford to sue Goliath, and even if he won, Goliath would just lobby for small changes to the law to further strip rights away from all the falsely accused Davids.

I'm not saying the little guy shouldn't sue; people should stand up for themselves whenever they are accused of wrongdoing, and especially when they know for a fact they are innocent. The problem is, even when suing and winning sets a precedent, the big players just move the goalposts again. There's never going to be an easy solution that satisfies both content creators and content consumers short of massive copyright reform and hard criminal instead of soft civil penalties for making bogus DMCA claims.

You don't need DMCA provisions to sue for libel.

But you do need deep pockets.

If the DMCA allowed the accused to sue then I would assume EFF would do it.

And I further suspect that the EFF would have or would be able to muster the resources to do so in a case like this.

Worse, perjury is a criminal offense, not a civil one. You can't sue for perjury; you have to convince a prosecutor to press charges.

Functionally, none. This is how the record labels can send millions of takedown notices a day, completely automated, frequently bogus.

The record labels are generally using systems set up to bypass DMCA in order to process high volumes of requests. For example, labels who issue takedowns of YouTube videos aren't submitting DMCA requests.

In theory barratry could be used as the basis for disbarment. Knowingly making false statements would fall under this regime. Lawyers rarely go after their own kind so this leverage isn't often used, however. Jack Thompson got away with his egregious behavior for a few decades before he was taken to task.

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