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Comment by wing-_-nuts | Hacker News Reader

I do wonder if one could learn enough of the law to cheaply defend themselves against bogus DMCA notices. You see this sort of things all the time in emulation where the product itself is technically legal, but the people hosting the project have to shut down anyway because they know the legal costs of mounting a defense would bankrupt them.

It would be nice to turn the tables and say to N 'ok, we can do this all day, enjoy burning a mountain of cash with your legal team'

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It's possible, the biggest downside is to legally respond to a fake DMCA you have to dox yourself to the filer.

But if your dox is already out there, there's really no downside once you learn the process.

I had a post on Reddit taken down a while ago. It was entirely my content and did not even include any quotes. I looked into responding, but it would have included far more information than could be gleaned from my Reddit bio and I suspected it was a sort of phishing scheme to get that information. (I did not respond, it was not an important post.)

It goes beyond just doxing yourself; to legally respond to a DMCA notice, AFAIK you also have to consent to the jurisdiction of the USA courts. Which might be acceptable to a resident of the USA, since they're already under the jurisdiction of USA courts, but it can be problematic to residents of the rest of the world.

Any sources for this?

Doesn't sound something that would hold up since you can't just sign away your rights in sane jurisdictions.

> Any sources for this?

https://www.law.cornell.edu/uscode/text/17/512

"Contents of counter notification [...] The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification [...]"

As the other comment says, you have to basically dox yourself to respond in the legal sense, and of course there's expenses even to just doing everything yourself.

The law inherently favors corporations because every Tom Dick and Harry in the US of A doesn't have a lawyer, let alone an entire legal department. Yeah they might be wrong but they have basically infinite resources to drag out the process of you proving that until you call it quits for your own sanity, or simply run out of money to fight back.

Like the author of the post says, most of America's legal system is set up pretty explicitly to serve corporations.

It is, and I get it, but there's a defiant part of me that says 'oh really, you want to come after my open source project? Let's go'.

I mean, other than my time, if I'm well informed enough to fight just these lawsuits, what are the costs?

Almost any court of sufficient level has filing fees for every legal motion that may be required in your case. Also, many courts require you to be physically present to argue your case, which depending where your case is actually being heard, could cost jack shit, or could cost a fortune. Not to mention the loss of income if you work a typical job, since you'll be taking time off, hopefully paid, to go to court. And of course hours and hours of research and uncompensated labor just to do all the paperwork involved.

Yeah, I'm mainly thinking of defending open source projects in retirement. The thought of being a nuisance to John Deer, Nintendo, Sony, etc tickles me a bit.

Just responding to the one point about physical presence: post-COVID, is it not possible to appear virtually?

Depends on the court, depends on the judge. I've known several judges that 100% require in-person, and they are doing that solely to be pricks.

In this case, it sounds like CrowdStrike could have gotten CloudFlare to take down the website whether the DMCA notice was valid or not, without having to go through a legal process, since CloudFlare wasn't exactly helping.

If ClownStrike had not made the news, maybe CrowdStrike would continue to try the same DMCA trick with Hetzner.

It doesn't matter. Your hosting provider either doesn't care about the DMCA at all because it's run by some ideological free speech warrior (e.g. njalla; these hosts cost 5-10x more so you aren't using one) or it cares about taking things down and doesn't care about putting things back up (these are the ones people actually use e.g. Hetzner, Cloudflare).

It doesn't take much to send your service provider a DMCA counter notice [1].

> (3) Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:

> (A) A physical or electronic signature of the subscriber.

> (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

> (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

> (D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

However, if your service provider wants to be under the DMCA safe harbor, they must keep your content down for at least 10 days and no more than 14 days after they receive the counter notice (unless they receive a further notice from the originator of the DMCA that they have filed a case regarding the alleged infringement --- in that case the content will remain down until the case is resolved).

In a lot of cases, having the content down for 10-14 days is kind of too long. Also, you may not want to provide your identity information to the originator of the complaint or your provider. You may also not be willing to state your good faith belief under penalty of perjury.

If the originator is willing to take their complaint to court, that's going to be an adventure --- but if they just send out mass DMCA complaints and don't follow up, you might be fine. If you actually want to take them to court over their complaints, even though they don't want to, that's an adventure too.

You may also try to convince your provider that the originators complaints aren't structurally valid DMCA complaints if they aren't, although that requires a sympathetic provider. I've only read summaries, but this case is a potential example of an invalid complaint, as the summary says it's a DMCA complaint about trademark infringement; the DMCA doesn't cover trademark, so the complaint is not structurally valid --- the provider has no duty to process it, and receives no safe harbor from doing so. They may or may not have a duty to take action on trademark complaints, but it doesn't arise from the DMCA.

[1] https://www.law.cornell.edu/uscode/text/17/512 section (g)(3)

> The subscriber’s name, address, and telephone number, ...

Yeah, no. (Re: Reddit DMCA takedown.)

I mean, I get it, but it's very hard to participate in the courts and pre-court process unless you're identifiable and contactable. So if you don't want to be identifiable, the easiest option is to let the takedown go through and just post it somewhere else.

That's a problem for the claimant to solve. For any other dispute they would have to file against john doe and get the court to find out the identity of the accused if the case isn't completely bogus. There is no reason why copyright disputes should be able you short-circuit that sanity check.

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