AFAIK DMCA notices don't go through the courts. They're just sent to the site owner, who must comply or file a counter notice. Also, AFAIK there haven't been any prosecutions for people abusing DMCA notices.
I think you're mixing two things:
* if a site owner receives a DMCA notice and believes the content is not infringing they can just do nothing and / or tell whoever sent it to get bent, sender may escalate to the courts
* service providers which want to be protected under safe harbour must "act expeditiously to remove purported infringing content" regardless of counter-notices, this is not an either/or situation
Content should be restored 10 to 14 days after the counter-notice is sent to the original claimant unless they engage in legal action, but it must be taken down either way:
> 17 U.S. Code § 512 (c)(1) In general.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
> […]
> 17 U.S. Code § 512 (c)(1)(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
> […]
> 17 U.S. Code § 512 (g)(2)(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
> 17 U.S. Code § 512 (g)(2)(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.
Also makes me wonder if people could DDOS an entire company with DMCA takedown requests.
Fastest way to make change will probably be using their own game against them and have them lobby on your behalf
Someone should DDOS the web pages of all the American congresscritters and their campaigns and campaign contractors with DMCA notices. That's probably the only way this will get fixed.
However, there is a pending test case attempting to give it some teeth. I expect it will be entertaining, no matter how it substantively turns out:
https://www.popehat.com/2019/12/13/randazza-confederates-dou...
This was the first successful 512(f) verdict back in 2004, though it may still stand nearly alone, and did not yield enough in damages to affect megacorp behavior in the absence of a huge flurry of such lawsuits: https://en.m.wikipedia.org/wiki/Online_Policy_Group_v._Diebo....
While it’s not an easy case to win, it has teeth - unfortunately they are limited to ACTUAL damages, which does give companies incentive to file misrepresented claims as one cannot easily hire a contingent attorney without the possibility of a statutory windfall.
There's a significant power imbalance here.
The site owner in the case of TF receiving the request is Google, not TF. Google probably automatically acts on the DMCA request and TF has to go through the process of contesting it. So TF can't just sit around and do nothing.
GP states that the site owner must [take down the content] or send a counter-notice, that’s not true regardless of whether you assume the “site owner” is the service provider or the subscriber, which is why I tried explaining the duties of each.