Due to the following bit in the notice:
> Gareth Young, Internet Investigator, swears, under penalty of perjury, that the information in the notification is accurate
It would appear that in this situation, incompetence in fact constitutes fraud.
Perjury is lying under oath. The statement must be made under oath to be eligible for perjury. And making a statement under oath is a formal process, dictated by court or law.
You cannot make yourself be under oath. Swearing something to be true doesn't count, unless there is a legal context that makes it true. Swearing in a witness in court makes that happen. Some laws (like DMCA) make statements in certain documents oathful. But it is the law, not the document, that decides that.
In my common law country, at least, when you swear something, it's an oath, and only an oath. We have a non-religious variant, no almighty God required, where you solemnly affirm to the same effect, and false information provided is perjury, punishable by up to 7 years imprisonment (if you perjured yourself in a judicial proceeding), unless you perjured yourself to get someone falsely convicted for a serious crime, then it's up to 14 years.
We also do statutory declarations, where you only declare it to true, but false information in one of those is still a crime, with a lesser penalty.
Oh, and we have a fun wee clause that maybe your jurisdiction doesn't? Where if you swear an oath, it can still be perjury even if it's not being sworn in a judicial proceeding. Only 5 years though.
So yeah, what does "swear" actually mean in the US? I don't get how you'd swear a DMCA takedown without your oath being taken. I figured if it was legit sworn, they'd do the usual "sworn this day X at BLA, witnessed/authorised/etc by Z"
Are they just trying to sound legal and scary, or is that format required in a takedown?
Not a lawyer, nor do I play one on TV, but I've been an occasional customer of the judiciary sufficiently to pick up the vagaries.
Sigh.
I guess it's the third option. Which is frustrating, because I think that it's still harmful, especially when it's so obviously false.
Can't somebody take the precedent set by those lawyers using ChatGPT to whip up nonsense for the court, and take these DMCA mills to tadk for conduct unbecoming for not verifying that, in fact, any software generated flag actually has merit before the Courts?
The Courts have been clear and unambiguous that their time is not to be wasted on BS, and that an attorney has the Duty of Care to ensure that what they vouch for is representative, and truthful.
Why is this still done at the scale it is if, in fact, the Courts are enforcing due rigor?
...The answer likely is, they aren't, and big tech is usurping the authority of the Courts to weigh in, thereby disrupting due process. In doing so, their legal team is committing the same censurious behavior, by advising their client to act unlawfully too.
Frankly, I'd start being thrilled at such notices if I could find an attorney willing to take a shot at holding notice generators to account for false positives, and service providers who cancel service without complying with due process accountable.
In fact, if the Courts were sufficiently dedicated to it, it would create a selection pressure on attorneys to ultimately be truthful, lest they be hunted by one of their fellow attorneys who actually is honest, and willing to check.
Who watches the watchers? Another watcher, with the incentive to reap a reward for proving the falsity of a claim.
Let the attorneys feast on one another for a bit, and eventually we should reestablish some sanity.
The courts don't care about that either. In at least one of the cases against ISPs (cox I think) the RIAA sent a large number of DMCA notices for works they didn't even own the copyrights to. After years of work the ISP's lawyers found a bunch of them and told the court who did reduce the damages they were on the hook for to account for the invalid DMCA notices but the court took no action whatsoever against the RIAA for sending them.