Comment by jkaplowitz | Hacker News Reader

Comment by jkaplowitz | Hacker News Reader

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These do exist, actually, for people who knowingly mispresent that material or activity is infringing - Section 512(f).

https://www.law.cornell.edu/uscode/text/17/512 (search for "(f)" a couple of times)

It has been a very weak penalty in practice without much enforcement, but there are some examples of it being used:

https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold.... (successfully, but with low enough damages that it was mainly a moral victory and not really a disincentive for anything)

https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp. (rather less successfully, but not only was the work allowed to stay online, the case did confirm that copyright holders must at least give subjectively good-faith consideration to the idea that material or activity may be fair use before sending a notice of infringement. this does not necessarily require a proper legally reasonable weighing of the statutory fair use factors, just subjectively good-faith consideration.)

The problem with many of these is that people don't actually file a valid DMCA claim, but the hosting provider takes down things anyway. You need to have legal vet everything and fight them all if you want to be effective, but most have gone the YouTube method of doing their own thing.

The bar for a valid DMCA claim is very low. While it's definitely the case that frivolous, non-valid DMCAs get taken at face value and treated as valid by some companies, fixing this wouldn't fix the underlying problem since filing spurious valid DMCAs has almost no real punishment, since no one has been willing to actually litigate to punish people doing it.

Which is ultimately caused by the "attention economy" and that most providers don't get paid by their end-users but instead by advertisers. The service of let's say YouTube is not to provide a place for end-users to upload videos but to provide advertisers with a way to put their spam in front of eyeballs - the content that end-users upload is merely a necessary evil they'd gladly get rid of if they could find some other way of driving traffic to the spam.

Even in a perfect world where the DMCA is "balanced" and any abuses are properly punished, this problem wouldn't go away - the platforms will merely provide alternative means for advertisers (and anyone else who's happy to pay) - their real customers - to take down whatever content they want. It will merely become a bullet point in their list of features that they offer to paid customers, completely independent of the DMCA (and thus wouldn't be subject to whatever the DMCA says).

The grandparent post is talking about §1201, whereas you're talking about §512 (I haven't checked which one Nintendo used, although "DMCA takedown" normally refers to §512).

The project they apparently had Github take down was something that dumps keys from Switches, so it would be 1201, anti-circumvention.

Ah, you're right indeed. (As of course you, specifically, would be on this topic.) My mistake. Unfortunately I can no longer edit my previous comment to correct it.

It is confusing, because some organizations have sometimes improperly sent §512 takedown notices alleging §1201 violations (which isn't contemplated by the text of §512, which requires an allegation of direct copyright infringement). I don't remember if there are any court decisions addressing this practice.

(I also don't know what theories hosting providers use or don't use to argue that they don't have §1201 liability for things that their customers post...)

The lawyers that file the invalid claims should get disbarred.

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